Kanrich v. Wise — 92 N.Y.S. 790

Majority

p. 790

KANRICH v. WISE et al.

(Supreme Court, Appellate Term.

March 21, 1905.)

Headnote

sale by Sample—Time fob Inspection.

Though the purchaser by sample is entitled to a reasonable time for examination, hats accepted after inspection cannot be returned a week later because they were crushed or bent and were “oft color.”

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 811-813.]

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

Action by Simon Kanrich against Benjamin Wise and another. From a judgment for defendants, plaintiff appeals. Reversed. Argued before SCOTT, O’GORMAN, and BLANCHARD, JJ.

Baggott & Ryall, for appellant.

David C. Myers, for respondents.

The sale was made by sample, and the well-established rule is that the warranty in such cases does not survive acceptance, provided that the purchaser has a reasonable time for examination, and that the defects are visible upon inspection. In this case it is shown that the purchaser examined the goods upon receipt, and that the defects of which complaint is made, viz., that they were crushed and bent and “off color,” were patent. Some of the hats defendants returned at once, and these plaintiff took back. Those over which this controversy has arisen were not returned until a week later. This was too late, and plaintiff was justified in refusing to receive them.

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.