51 A.D.2d 719 | N.Y. App. Div. | 1976
In an action to recover damages for breach of warranty, defendant appeals from a judgment of the Supreme Court, Rockland County, dated June 16, 1975, in favor of plaintiff, after a nonjury trial. Judgment affirmed, with costs. Plaintiff, through one Griffin, an experienced bricklayer and mason, ordered a large quantity of bricks from the defendant. Griffin was to construct two retaining walls, steps and walkways for the plaintiff. It was plaintiff’s desire that the brick to be used match the color and texture of bricks utilized in the construction of his home. Accordingly, Griffin removed a brick from the plaintiff’s home and showed it to defendant’s salesman, advising him that he wanted a similar brick for the purpose of building retaining walls, walks and steps. There is no evidence that Griffin asked for the identical brick, or that he specified any particular type of brick. Nor is there any evidence that defendant’s salesman knew Griffin to be a mason or that Griffin represented himself as such. A brick, similar in color and texture to the one taken from plaintiff’s home, was selected and utilized in the construction of retaining walls, walkways and steps. Within one year,