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Petty v. Fish

61 N.Y.S. 1127 Court N.Y. City Ct. Decision date 1899-12-27 English

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p. 1127
PETTY v. FISH.
(City Court of New York, General Term.
December 27, 1899.)

Headnote

Sale—Warranty—Language—Construction.
If the language used at the time of a sale, on a fair construction, is equivalent to an undertaking on the part of the owner that the property is what it is represented to be, it is sufficient to create a warranty, without the use of the word “warrant” or “warranty.”
Appeal from trial term.
Action by John P. Petty against John Fish. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals. Affirmed.
Argued before FITZSIMONS, C. J., and SCHUCHMAN, J.
August P. Wagener, for appellant.
C. F. Goddard, for respondent.

The appellant’s point, that the defendant’s motion to dismiss the second cause of action on the ground that there was no guaranty in the written agreement of March 1, 1893, as to the liabilities of the firm of Howden & Fish, should have been granted, is not well taken. The rule of law is that, in order to constitute a warranty, it is not necessary that a vendor should use the word “warranty” or “warrant.” If the language used at the time of the sale, upon a fair construction, amounts or is equivalent to an undertaking on the part of the owner that the property is what it is represented to be, this is sufficient to create a warranty. Jones v. Mayer, 16 Misc. Rep. 588 , 38 N. Y. Supp. 801 ; Udell v. Safarian, 19 Misc. Rep. 544 , 43 N. Y. Supp. 1092 ; Canning Co. v. Metzger, 118 N. Y. 265 , 23 N. E. 372 .

We do not think that there was any mistake made by the trial judge in allowing the witnesses to testify from memoranda made by them. See Howard v. McDonough, 77 N. Y. 592 .

We have examined all the various exceptions, and do not think that any one of them presents reversible error. We think that the plaintiff substantially proved his two causes of action. The defendant and his witnesses by their testimony have not created a single conflict of evidence.

Judgment and order appealed from affirmed, with costs and disbursements.

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