Schwartz v. Kohn

155 N.Y.S. 547

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 3, 1915
• Status: Published

Opinion

PAGE, J.

The action was to recover for goods sold and delivered. It was apparent from the plaintiff’s testimony that the sale was of “pussy willow” taffeta by sample. It was conclusively proved that the goods delivered were not “pussy willow” taffeta, nor were they of the quality of the sample. Upon inspection, immediately after delivery, the defendant discovered these facts, and returned the goods by an express company. The plaintiff refused to accept the return, and brought an action for the agreed price, and has recovered judgment.

The plaintiff claims to have sold the goods “as is,” and they were so billed to the defendant. The use of this phrase does not change the requirement that the goods must be of the kind and quality represented by sample, but refers simply to the condition of the goods. The goods delivered must be “pussy willow” taffeta of the quality of the sample, even if in a damaged condition. In the case at bar something other than “pussy willow” taffeta was delivered.

The judgment should be reversed, with $30 costs, and the complaint dismissed, with costs. All concur.