Putnam v. Interior Metal Manufacturing Co.

121 N.E. 463, 225 N.Y. 37, 1918 N.Y. LEXIS 815

Opinion

Cuddeback, J.

The action was brought to recover the sum of about $800, a balance due on the sale by the plaintiff to the defendant of certain Norton elevator door checks and closers.

The answer set up a breach of warranty that the appliances were fit and proper for the purposes intended. The answer. further set up a counterclaim based mainly on a breach of warranty. The reply did not deny that there was such a warranty; therefore, it stood admitted.

The trial court directed a verdict in favor of the plaintiff and dismissed the counterclaim. That determination has been unanimously affirmed at the Appellate Division.

On the trial evidence which tended to show that the articles furnished were not fit and proper for the purposes intended was excluded.

It is plain that with the warranty admitted by the pleadings the defendant could show a breach of the warranty. Therefore, there was error in the court’s ruling which led to the dismissal of the defendant’s counterclaim and to the direction of a verdict against him for the full amount of the plaintiff’s demand.

We are constrained to reverse the judgment appealed from.

The judgment should be reversed and a new trial granted, costs to abide the event.

His cock, Ch. J., Collin, Cardozo, Pound, Crane and Andrews, JJ., concur.

Judgment reversed, etc.