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Winsey v. Spitzer Motor Sales, Inc.

12 Misc. 2d 56 Court Supreme Court, Appellate Term, First Department, Decision date 1958-04-24 English

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p. 56
Aubrey J. Winsey, Respondent, v. Spitzer Motor Sales, Inc., Appellant.
Supreme Court, Appellate Term, First Department,
April 24, 1958.
Arthur Kaplan and Joseph N. Friedman for appellant.
Paul F. Starace for respondent.

Since the written sales contract contained an effective disclaimer of warranties and there was no claim of fraud in inducing the sale, a recovery based on the breach of an express oral warranty cannot be sustained. (Broderick Haulage v. Mack-International Motor Truck Corp., 1 A D 2d 649 ; cf. Angerosa v. White Co., 248 App. Div. 425 , affd. 275 N. Y. 524 .)

The record does not show whether the defendant complied with the provisions of section 64 of the Vehicle and Traffic Law (as amd. July 1,1954) nor was the question of the effect of noncompliance litigated on the trial. A new trial should be had at which these issues may be explored.

p. 57
The judgment should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.

Steuer, J. P., Hofstadter and Hecht, JJ., concur.

Judgment reversed, etc.

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