13 A.D.2d 1025 | N.Y. App. Div. | 1961
In an action to recover damages for breach of an express warranty contained in an assignment of a retail installment sales contract of an automobile, defendant appeals from a judgment of the Supreme Court, Westchester County, entered June 1, 1959, in favor of plaintiff, upon a decision of the court, after a nonjury trial. Judgment affirmed, with costs. We do not agree with the reasons stated by the learned Trial Justice, except that we are of the opinion that the false statement as to the buyer’s address was material within the meaning and intent of defendant’s warranty. Ughetta, Kleinfeld, Christ and Pette, JJ., concur; Beldock, Acting P. J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: On October 22, 1957, one Bernard Williams proposed to purchase an automobile from defendant for $3,923, but asked for financing of $2,873. In connection with the application for credit, defendant asked Williams for information as to his residence address and his employment, among a number of other items. Defendant does not extend credit, but submits the application for credit to plaintiff bank. On October 22, 1957, defendant submitted to plaintiff the information received from Williams. Plaintiff did not investigate Williams’ claimed home address. However, plaintiff ascertained independently, and not from defendant, the telephone number of Williams’ claimed employer and then communicated with that firm. After this investigation by plaintiff of Williams’ employment and earnings, plaintiff decided to extend credit of $2,500 instead of the requested $2,873. Defendant then requested Williams to pay another $373 in cash, which he did. Plaintiff thereupon purchased the conditional sales contract for $2,500. Attached to the contract was a written warranty by defendant that the contract evidenced a bona fide sale to the buyer, and that all statements of fact therein contained were true. The record shows, however, that defendant did not sign the dealer guarantee which was also included in the contract. Williams failed to pay the November, 1957 installment. This is an action by plaintiff against defendant for the balance due based on the claim that there was a misrepresentation by defendant in connection with the warranty, in that Williams’ home address
