Hano v. Simons — 92 N.Y.S. 337

Majority

p. 337

HANO et al. v. SIMONS et al.

(Supreme Court, Appellate Term.

March 1, 1905.)

Headnote

1. Conditional Sale—Waiver of Condition.

Where goods were bought on condition of approval by a third person, the condition is waived by acceptance and payment without such approval.

2. Sale—Breach of Warranty—Measure of Damages.

Where defective doors were accepted on the seller’s agreement to make them right if found defective, which he failed to do, the measure of damages is the difference in value between the doors as they are and as they would be if made right.

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

Action by Philip Hano and another against Berry B. Simons and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Argued before SCOTT, MacLEAN, and DAVIS, JJ.

J. Charles Weschler, for appellants.

Theodore Prince, for respondents.

I see no warranty which survived acceptance and payment. If the approval of ■ the fire underwriters was necessary before plaintiffs could have been called upon to accept the doors, they waived that condition by accepting and paying before such approval had been had. There was no fraud or concealment. The plaintiffs saw the doors, and had notice and knowledge of their alleged defects. If plaintiffs rely upon defendants’ promise, subsequent to or contemporaneously with payment, to make the doors right, they have not proved damages, which would be the difference in value between the doors as they are and as they would be if made right.

The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.

DAVIS, J., concurs; MacLEAN, J., taking no part.