Hyperlawhypertext legal database Hungerford Co. v. Rosenstein 19 N.Y.S. 471

← Cases

Hungerford Co. v. Rosenstein

19 N.Y.S. 471 Court General Term. Decision date 1892-06-06 English

Delivered by Bischoff, J.

Contents

Majority

p. 471
Hungerford Co. v. Rosenstein.
(Common Pleas of New York, City and County,
General Term.
June 6, 1892.)

Headnote

Parol Evidence.
Where there is in evidence a written contract of sale of machinery, paroi evidence of a contemporaneous paroi warranty is inadmissible. Store-Service Co. v. PLartung, (Com. PI. N. Y.) 18 N. Y. Supp. 143 , followed.
Appeal from trial term.
Action by the Hungerford Company against Clara Rosenstein to recover purchase money. From a judgment for plaintiff, and order denying a motion for a new trial, defendant appeals.
Affirmed.
Argued before Bischoff and Pryor, JJ.
H. Arlington, for appellant. William B. Ellison, for respondent.

The complaint declared upon two causes of action, the first for the unpaid balance of the purchase money agreed to be paid for the sale

p. 472
and delivery of certain machinery to defendant, and the second for work, labor, and services rendered and materials furnished at defendant’s request. There was no motion to dismiss the complaint, or for the direction of a verdict •for defendant, and the sufficiency of the evidence to support plaintiff’s recovery upon both causes of action was thus conceded. The learned trial judge also charged the jury, without objection or exception by defendant, that the second cause of action remained undisputed, and that in any event a verdict should be rendered in favor of the plaintiff therefor, and the only, exceptions, therefore, which may be urged as presenting ground for reversal are those relating to the rulings on the trial. Defendant offered to show by the testimony of witnesses that at the time of entering into the agreement for the sale of the machinery plaintiff had warranted their fitness for certain purposes. It appeared from the complaint, and was admitted by the answer, that the agreement was in writing, and the agreement itself was in evidence. Under precisely like conditions we have held that evidence to prove a contemporaneous paroi warranty is inadmissible. See opinions in Store-Service Co. v. Hartung, 18 N. Y. Supp. 143 , and same ease, on reargum'ent, 19 IT. Y. Supp. 233, herewith handed down. ■ The judgment and order appealed from should be affirmed, with costs.