178 A.D. 421 | N.Y. App. Div. | 1917
The decision as first made by the Municipal Court judge clearly indicates that he found with defendant as to the warranty, its breach, and that the defendant sustained damages thereby which constituted a good counterclaim. His subsequent order modifying his first decision permitted plaintiff to recover the full contract price for the goods delivered and allowed nothing upon the counterclaim. We cannot assume that he intended to find the facts differently. His decision indicates that while finding the facts in favor of defendant, he held her not entitled to recover upon her counterclaim because she had kept and used the goods after full knowledge of the breach of the alleged warranty, or the failure of the goods delivered to correspond in description with the goods purchased. We think the learned judge in so deciding has failed to give effect to sections 93, 95, 130 and 150 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45), as added by chapter 571 of the Laws of 1911. By these sections, if the goods delivered were not the variety of canned vegetables which defendant purchased and which plaintiff represented them to be, as she alleges, then, even though the contract was executory, defendant had the right to retain and use the goods after discovering that they were not as represented, and recoup her damages out of the purchase price, provided she gave notice to plaintiff of the breach of his promise or warranty within a reasonable time after its discovery by her. If it be true, as claimed by defendant, that she did not know’ at the time the goods were delivered plaintiff’s name or address, then we think the notice which she did give about three weeks after the sale, when plaintiff called at her house to collect his pay, was within a reasonable time.
All concurred.
Judgment of County Court and judgment of Municipal Court reversed, with costs in this court and the courts below to the appellant to abide the event, and a new trial granted, to be had in the Municipal Court on the 29th day of May, 1917, at ten a. m.