Royal Saulpaugh v. Chisholm-Ryder Co.

Appellate Division of the Supreme Court of New York

Royal Saulpaugh v. Chisholm-Ryder Co.

4 A.D.2d 987, 167 N.Y.S.2d 800, 1957 N.Y. App. Div. LEXIS 3931

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1957

StatusPublished

This text of 4 A.D.2d 987 (Royal Saulpaugh v. Chisholm-Ryder Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Royal Saulpaugh v. Chisholm-Ryder Co., 4 A.D.2d 987, 167 N.Y.S.2d 800, 1957 N.Y. App. Div. LEXIS 3931 (N.Y. Ct. App. 1957).

Pincite

Opinion

Appeal from an order of a Special Term of the Supreme Court, Albany County. Defendant leased an agricultural machine to plaintiffs described as a “mechanical snap bean harvester”. The contract of lease contained a warranty that the machine was “ able to operate in a mechanically satisfactory manner ”. In the cause of action based on breach which defendant moved to dismiss on the ground of insufficiency, it is pleaded that the machine leased to plaintiffs did not operate in a mechanically satisfactory manner, but broke and damaged the beans harvested by it ”. The portion of the allegation stating that the machine did not operate in a mechanically satisfactory manner is a sufficient pleading of a conclusion of fact to sustain a breach of an express warranty. The words “ but broke ” are evidentiary and perhaps surplusage, and do not negate or weaken the sufficiency of the statement of breach in the words immediately preceding. The words “and damaged the beans harvested by it” are statements of damage and not of breach. They do not imply that defendant agreed to provide a machine that would not damage beans; but plead rather a mechanically unsatisfactory performance of the machine had this result. We think the Special Term was right in denying the motion to dismiss. Order unanimously affirmed, with $10 costs. Present —Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.

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Appeal from an order of a Special Term of the Supreme Court, Albany County. Defendant leased an agricultural machine to plaintiffs described as a “mechanical snap bean harvester”. The contract of lease contained a warranty that the machine was “ able to operate in a mechanically satisfactory manner ”. In the cause of action based on breach which defendant moved to dismiss on the ground of insufficiency, it is pleaded that the machine leased to plaintiffs did not operate in a mechanically satisfactory manner, but broke and damaged the beans harvested by it ”. The portion of the allegation stating that the machine did not operate in a mechanically satisfactory manner is a sufficient pleading of a conclusion of fact to sustain a breach of an express warranty. The words “ but broke ” are evidentiary and perhaps surplusage, and do not negate or weaken the sufficiency of the statement of breach in the words immediately preceding. The words “and damaged the beans harvested by it” are statements of damage and not of breach. They do not imply that defendant agreed to provide a machine that would not damage beans; but plead rather a mechanically unsatisfactory performance of the machine had this result. We think the Special Term was right in denying the motion to dismiss. Order unanimously affirmed, with $10 costs. Present —Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.

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Bluebook (online)

4 A.D.2d 987, 167 N.Y.S.2d 800, 1957 N.Y. App. Div. LEXIS 3931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royal-saulpaugh-v-chisholm-ryder-co-nyappdiv-1957.