Stinesville & Bloomington Stone Co. v. White

City of New York Municipal Court

Stinesville & Bloomington Stone Co. v. White

21 Misc. 540, 47 N.Y.S. 1149

DecidedOctober 15, 1897

StatusPublished

This text of 21 Misc. 540 (Stinesville & Bloomington Stone Co. v. White) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stinesville & Bloomington Stone Co. v. White, 21 Misc. 540, 47 N.Y.S. 1149 (N.Y. Super. Ct. 1897).

Pincite

Opinion

Per Curiam.

The plaintiff sold and delivered stone to the defendant. This action was brought to recover the agreed upon; value of the same. The defendant pleaded among other things that the plaintiff warranted and agreed that the stone to be shipped to him .under such agreement should be the best quality stone and in first-class condition and thoroughly scabbled, and that it should not weigh more than 160 pounds to- the cubic foot. That the stone shipped was worthless, and a large portion was not scabbled and' weighed on an average 175 pounds to the cubic foot, and thereby damage was done to the defendant.

[541]*541The warranty alleged by the defendant in our opinion survived the acceptance by him of the stone, and any damage done him "by reason of its violation was a proper counterclaim against the plaintiff’s cause of action.

Upon the trial the defendant attempted to introduce evidence tending to sustain his counterclaim and prove his damage, and such evidence was excluded by the trial judge, and his ruling in that respect was error, and entitled defendant to a new trial.

'Judgment reversed and a new trial ordered, with, costs to the appellant to abide the event.

Present: Fitzsimons and Conlan, JJ.

Judgment reversed and new trial ordered, with costs' to appellant to abide event.

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Per Curiam.

The plaintiff sold and delivered stone to the defendant. This action was brought to recover the agreed upon; value of the same. The defendant pleaded among other things that the plaintiff warranted and agreed that the stone to be shipped to him .under such agreement should be the best quality stone and in first-class condition and thoroughly scabbled, and that it should not weigh more than 160 pounds to- the cubic foot. That the stone shipped was worthless, and a large portion was not scabbled and' weighed on an average 175 pounds to the cubic foot, and thereby damage was done to the defendant.

[541]*541The warranty alleged by the defendant in our opinion survived the acceptance by him of the stone, and any damage done him "by reason of its violation was a proper counterclaim against the plaintiff’s cause of action.

Upon the trial the defendant attempted to introduce evidence tending to sustain his counterclaim and prove his damage, and such evidence was excluded by the trial judge, and his ruling in that respect was error, and entitled defendant to a new trial.

'Judgment reversed and a new trial ordered, with, costs to the appellant to abide the event.

Present: Fitzsimons and Conlan, JJ.

Judgment reversed and new trial ordered, with costs' to appellant to abide event.

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Bluebook (online)

21 Misc. 540, 47 N.Y.S. 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinesville-bloomington-stone-co-v-white-nynyccityct-1897.