Dommerich v. Garfunkel — 67 N.Y.S. 167

Majority

p. 167

DOMMERICH v. GARFUNKEL et al.

(Supreme Court, Appellate Term.

November 21, 1900.)

Headnote

Warranty—Defense—Evidence.

Where, in an action for goods sold, defendant set up as a defense a warranty that they were good, merchantable cloths, and his witnesses testified that the goods purchased were the same as those sold at another time, evidence offered by him to show what kind of goods such others were was properly rejected as not tending to establish his defense.

p. 168

Appeal from city court of New York, general term.

Action by Louis F. Dommerich against Morris G-arfunkel and another. From a judgment for plaintiff, affirmed by general term ( 65 N. Y. 'Supp. 564 ), defendants appeal.

Affirmed.

Argued before TRUAX, P. J., and DUGBO and SCOTT, JJ.

H. L. Franklin, for appellants.

M. D. Steuer, for respondent.

The defendants’ witnesses testified on the trial that the goods sold in September were the same goods as those sold in July, while the warranty set up in the defense and counterclaim was that the goods were “good, merchantable cloths, fit to be manufactured into cloaks fit for ordinary use and wear.” The defendants sought to show on the trial what kind of goods certain July goods were, but this evidence was excluded. There was no error in this ruling. To show that the goods delivered in September were not the same goods as those delivered in July did not tend to establish the defendants’ defense.

Judgment affirmed, with costs. All concur.