Schwartz v. Kohn — 155 N.Y.S. 547

Majority

p. 547

SCHWARTZ et al. v. KOHN et al.

(Supreme Court, Appellate Term, First Department.

November 3, 1915.)

Headnote

Sales <@=3166—Sale by Sample—Compliance wmr Agreement—“As Is.”

Where pussy willow tail'eta was sold by sample “as Is,” which entitled the seller to deliver the goods, even in a damaged condition, the seller cannot recover the purchase price, where the goods delivered were not oí the kind sold.

[Ed. Note.—For other cases, ace Sales, Cent. Dig. §§ 391-400, 402; Dec. Dig. <@=3'166.]

,g—.Enr Other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

p. 548

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Louis Schwartz and Berman Birnbaum, copartners doing business as Schwartz & Birnbaum, against Herbert R. Kohn and Max Smith, copartners doing business as the Kohn & Smith Manufacturing Company. From a judgment for plaintiffs, defendants appeal. Reversed, and complaint dismissed.

Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.

Max L. Arnstein, of New York City, for appellants.

Samuel Rosenberg, of New York City, for respondents.

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.