Hyperlawhypertext legal database Hungerford Co. v. Rosenstein 46 N.Y. St. Rep. 195

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Hungerford Co. v. Rosenstein

46 N.Y. St. Rep. 195 Court N.Y.C.P. Decision date 1892-06-06 English

Delivered by Bischoff, J.

Contents

Majority

p. 195
The Hungerford Co. Resp’t, v. Clara Rosenstein, App’lt.
(New York Common Pleas, General Term,
Filed June 6, 1892.)

Headnote

Evidence—Pabol to vaby written contract. .
Where the agreement for the sale of, goods is in writing and is in evidence, evidence to prove a contemporaneous paroi warranty is inadmissible.
Appeal from a judgment for plaintiff entered upon the verdict of a jury, and an order denying defendant’s motion for a new trial. Action to recover a balance of purchase money agreed to be paid for the sale and delivery of specified' machinery, and for work, labor and services rendered and materials furnished at defendant’s request
William B. Ellison, for resp’t; H. Aplington, for app’lt.

The complaint declared upon two causes of action; the first for the unpaid balance of the purchase money agreed to be paid for the sale and delivery of certain machinery to defendant, and the second for work, labor and services rendered, and materials furnished, at defendant’s request.

There was no motion to dismiss the complaint, or for the direction of a verdict for defendant, and the sufficiency of the evidence to support plaintiff’s recovery upon both causes of action was thus conceded. The learned trial judge also charged the jury, without objection or exception by defendant, that the second cause of action remained undisputed, and that in any event a verdict should be rendered in favor of the plaintiff therefor, and the only exceptions, therefore, which may be urged as presenting ground for reversal, are those relating to the rulings on the trial. -

Defendant offered to show by the testimony of witnesses that at the time of entering into the agreement for the sale of the ma

p. 196
chinery plaintiff had warranted their fitness lor certain purposes. It appeared from the complaint, and was admitted by the answer, that the agreement was in writing, and the agreement itself was in evidence. Under precisely like conditions we have held that evidence to prove a contemporaneous paroi warranty is inadmissible. See opinions in Lamson Consol. Store Service Co. v. Hartung, 45 St. Rep., 50 , and same case on reargument herewith handed down, 46 St. Rep., 191 .

The judgment and order appealed from should be affirmed, with costs.

Pryor, J., concurs.