Leiter v. Innis, Speiden & Co.

PER CURIAM. [1] The sale was not one by description. There was no express warranty. The case is one of implied warranty of quality. It was plaintiff’s duty to test the goods before using them, and to reject them if found unmerchantable. Sales of Goods Act (Laws 1911, ch. 571) § 96; Ferguson v. Netter, 204 N. Y. 505, 98 N. E. 16; Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562, 99 N. Y. Supp. 163. [2] The fact that defendant knew the purpose for which the goods were to be used, does not imply a warranty of fitness; defendant not being the manufacturer. Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. PAGE and HOTCHKISS, JJ., concur. LEHMAN, J., concurs in result.