Meyer v. Seely — 103 N.Y.S. 719

Majority

p. 719

MEYER v. SEELY.

(Supreme Court, Appellate Term.

April 10, 1907.)

Headnote

Sales—Warranties—Breach.

In an action for breach of warranty made in the sale of a machine, it is sufficient to show that there was a breach of any material condition of the warranty.

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Charles H. Meyer against Henry M. Seely. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before GILDERSLEEVE, P. J., and GIEGERICH and ERLANGER, JJ.

Newton McGovern, for appellant.

Francis X. Brosnan, for respondent.

The action is for the recovery of damages for an alleged breach of warranty made by the defendant to the plaintiff on the sale of a pump by the former to the latter. The defendant, in

p. 720

urging the reversal of the judgment, relies' mainly on the point that it was not shown upon the trial that the machine was improperly constructed, electrically or mechanically.

The difficulty with this contention is, however, that it was proven that the defendant had, in respects other than those just referred to, expressly warranted, at the time of the sale, that the pump was (1) fit and proper for the purpose of generating air pressure with which to pump ales, beers, and other liquids in plaintiff’s hotel, and (2) that the plaintiff, by using said pump, instead of one of another make, operated by water power, which he was using at the time of the sale, would save thereby the sum of $5 per month in operating expenses. There was sufficient evidence adduced upon the trial to warrant the justice in finding that there was a breach of some or all of these conditions, and we see no reason for disturbing his decision. Neither of the parties litigant noted an exception to the rulings of the trial justice.

Tudgment affirmed, with costs.