L. J. Wing Manufacturing Co. v. Dairymen's Manufacturing Co.

136 N.Y.S. 66

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 21, 1912
• Status: Published

Opinion

BIJUR,, J.

Plaintiff sued for the agreed price óf apparatus' installed in defendant’s tinning shop, which apparatus had been warranted by plaintiff to “change the air in the tinning room completely about once every two minutes.” On the issue of fact raised by defendant’s claim that the apparatus failed to operate as warranted, the learned trial judge was entirely justified in finding in defendant’s favor, and plaintiff’s appeal in respect of this point is without merit.

[1, 2] Defendant interposed a counterclaim, based, apparently, on the difference in value between the article as delivered and as warranted. Evidence offered by it to prove this difference of value was erroneously excluded. Defendant did not make a complete offer of proof in this respect, but as its first question of an expert as to the fair and reasonable value of an installation as warranted was excluded as incompetent, immaterial, and irrelevant, there was no need of of-, fering further proofs to support the exception first taken. Indeed, it is claimed with some force by defendant on this appeal that such proof would be unnecessary, because, as it urges, the evidence adduced proves that the apparatus was practically worthless. See Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63.

Judgment was given in favor of defendant for $29.41 costs; but, as defendant is entitled to a trial of the issues raised by its counterclaim, the judgment must be reversed, and a new trial granted, with, costs to defendant appellant to abide the event. All concur.