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Macrea v. Gotham Rubber Co.

99 N.Y.S. 373 Court N.Y. App. Div. Decision date 1906-06-08 English

Delivered by JENKS, J.

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p. 373
MACREA v. GOTHAM RUBBER CO.
(Supreme Court, Appellate Division, Second Department.
June 8, 1906.)

Headnote

Sales—Breach of Warranty—Measure of Damages.
Where fire hose did not last for a year, as guarantied by the seller, but the purchaser had used it for some time before it gave out, in an action on the warranty plaintiff could not recover the price and interest, but merely the difference between the value of the hose if it had continued to serve his purpose for the year and its actual value.
[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 1285.]
Appeal from Municipal Court, Borough of Brooklyn, First District.
Action by Charles Macrea against the Gotham Rubber Company. From a judgment in favor of plaintiff, defendant appeals.
Reversed.
Argued before JENKS, HOOKER, RICH, MIDLER, and GAY-NOR, JJ.
Edward A. Richards, for appellant.
Wilmot D. Morehouse, for respondent.

The plaintiff bought and paid for rubber fire hose of the defendant. The evidence for the plaintiff is that it was guarantied to withstand 300 pounds pressure and to last for a year, and if it did not the defendant would make it good. He sues to recover damages in the sum paid for the hose and interest from the date of payment, on the theory that the hose did not last for the year. The court gave judgment to him in that sum. It appears that the plaintiff was not satisfied soon after his purchase, but he used the hose every day, and many times on some days, in his business for considerable periods of time before it gave out. I think that the action is well brought, but as upon the plaintiff’s own version the hose was used by him, therefore it was of some value, and the measure of damages was the difference between the value of the hose if it had continued to serve his purposes for the year and its actual value. Hooper v. Story, 155 N. Y. 171 , 49 N. E. 773 . The judgment is reversed, and a new trial ordered, with costs to abide the event. All concur.

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