Watts v. Herrick — 224 N.Y. 663

Majority

p. 663

Samuel M. Watts, Appellant, v. Frank C. Herrick et al., Respondents.

Headnote

Watts v. Herrick, 172 App. Div. 915 , affirmed.

(Argued October 22, 1918;

decided November 12, 1918.)

Appeal from a judgment of the Appellate Division; of the Supreme Court in the third j udicial department,'1 entered January 13, 1916, affirming a judgment in favor' of defendants entered upon a verdict. This action was’ brought to recover damages alleged to have "arisen out' of a sale of ice by the defendants ■ to the plaintiff. The complaint set forth two separate counts or causes of action, the first on the theory of breach of express warranty

p. 664

by defendants as to quality, and the second on a deficiency of quantity of the ice as measured and as understood to be by both parties. The defense denied the making of the .warranty or breach thereof and plaintiff’s allegations as to the quality of the ice or deficiency in the same.

Howard Chipp for appellant!

■John- T. Norton for respondents.

Judgment affirmed, with costs; no opinion.

Concur: His cock,’ Ch. J., Collin, .Cuddeback, Hogan and McLaughlin, JJ. Not voting: Chase, J. Absent: Crane, J.