Ginsberg v. Lawrence

Appellate Terms of the Supreme Court of New York

Ginsberg v. Lawrence

121 N.Y.S. 337

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 24, 1910

StatusPublished

Cited by2 cases

This text of 121 N.Y.S. 337 (Ginsberg v. Lawrence) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ginsberg v. Lawrence, 121 N.Y.S. 337 (N.Y. Ct. App. 1910).

Pincite

Opinion

WHITNEY, J.

Plaintiff is a dealer in secondhand sewing machines. He sold one to defendants, stating that it was in very good condition. He let them have it on 10'days’ trial. They paid $25 on account after holding it some days. They were manufacturers of ladies’ underwear, using about 40 machines in their business. Thereafter, on being sued for the balance, they admitted the allegations of the complaint, but set up in defense and as a counterclaim that the machine was not in good condition.- The court properly dismissed the [338]*338counterclaim, but sustained the defense', and entered judgment for defendants, with costs.

Defendants’ theory was breach of express warranty: Plaintiff’s statement was not a warranty, but only an expression of opinion (Oneida Manufacturing Society v. Lawrence, 4 Cow. 440; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428); and breach of express warranty is matter for counterclaim, not for affirmative defense after the goods have been accepted (Nash v. Weidenfeld, 41 App. Div. 511, 58 N. Y. Supp. 609, affirmed 166 N. Y. 612, 59 N. E. 1127).

Judgment for defendants must be reversed, and judgment entered for the plaintiff for the amount of the claim. All concur.

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WHITNEY, J.

Plaintiff is a dealer in secondhand sewing machines. He sold one to defendants, stating that it was in very good condition. He let them have it on 10'days’ trial. They paid $25 on account after holding it some days. They were manufacturers of ladies’ underwear, using about 40 machines in their business. Thereafter, on being sued for the balance, they admitted the allegations of the complaint, but set up in defense and as a counterclaim that the machine was not in good condition.- The court properly dismissed the [338]*338counterclaim, but sustained the defense', and entered judgment for defendants, with costs.

Defendants’ theory was breach of express warranty: Plaintiff’s statement was not a warranty, but only an expression of opinion (Oneida Manufacturing Society v. Lawrence, 4 Cow. 440; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428); and breach of express warranty is matter for counterclaim, not for affirmative defense after the goods have been accepted (Nash v. Weidenfeld, 41 App. Div. 511, 58 N. Y. Supp. 609, affirmed 166 N. Y. 612, 59 N. E. 1127).

Judgment for defendants must be reversed, and judgment entered for the plaintiff for the amount of the claim. All concur.

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Bluebook (online)

121 N.Y.S. 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ginsberg-v-lawrence-nyappterm-1910.

Opinion

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