Levy v. Kornreich

SEABURY, J. The plaintiff sues to recover damages for the breach of an alleged warranty. The plaintiff purchased from the defendant a sideboard at the agreed price of $40. After indicating the style of sideboard desired, the plaintiff said: “I would like to have the sideboard in good condition.” The defendant replied: “I will send you a good sideboard.” The sideboard was delivered in a defective •condition. The defects were open and obvious. . Although the plaintiff complained of the defects he retained posses: sion of the sideboard, and made no offer to return it. The words used by the defendant in selling the sideboard were descriptive merely of the article agreed to be sold, and did not constitute a warranty. If the .article delivered was different from the article contracted for, the plaintiff’s remedy was for breach of the contract of sale. The defects being patent, this remedy did not survive the acceptance of the article. Staiger v. Soht, 116 App. Div. 874, 102 N. Y. Supp. 342. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.