154 N.Y.S. 888 | N.Y. Sup. Ct. | 1915
The plaintiff above named brought this action, alleging in its complaint that during the summer of 1914, between May and September, it sold and delivered to the defendant sweepers and vacuum cleaners of different grades, upon which there was due in the month of December, 1914, $162.75. The complaint specifically sets forth dates, orders, and deliveries,- and alleges failure of defendant to make payments as in and by the contract of sale provided, and demands judgment for the foregoing amount.
“4. Defendant, further answering plaintiff’s amended complaint, denies each and every allegation contained therein, except as hereinafter admitted, qualified, or denied.”
Immediately following is paragraph 5 of the answer, which says:
“Defendant, further answering plaintiff’s amended complaint, and for a defense thereto, alleges upon information and belief as follows.”
Defendant then sets up in his answer transactions had with the plaintiff as an independent transaction, and states as a conclusion:
“That goods were not delivered at the time agreed upon in accordance with the terms of said original agreement, which is referred to in plaintiff’s complaint.”
Section 130 is as follows:
“In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.”
It does not appear from the answer, or from the papers before me, that the buyer gave the notice to the seller of the breach of any promise or warranty within a reasonable time, which, read in connection with subdivision (a) of section 150, I think is necessary to maintain a defense in the way of recoupment in diminution or extinction of purchase price. So far as it appears, except for the denial in the answer, which amounts to a general denial, the defendant has kept the goods. In so doing it places itself under the limitation of subdivision 2 of section 150, which provides:
“When the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted.”
In Peuser v. Marsh (Sup.) 153 N. Y. Supp. at page 381, Mr. Justice Lyon has ably considered those two and other sections of the Personal Property Law, although the last-cited case differs from the present case, in that defendant in that action, both prior and subsequent to the commencement thereof, gave notice of his election to accept and retain the chattel. It is very evident that the purpose of this statute is to prevent the very condition that seems to exist here, viz., the buyer retaining the goods and using them, failing to give any notice of any breach of the original agreement to the seller until it has been sued for the purchase price, and then setting up affirmatively a defense by which it is sought to wipe out all of the original purchase price and demand an affirmative judgment for an additional sum against the plaintiff. Defendant- elected to come under subdivision “a” of section 150, and it is therefore bound by the limitations of subdivision 2, and by the provisions of section 130, which must be read in connection therewith.
The defense of the general denial is not demurred to; the defense and counterclaim and new matter is demurred to; and the demurrer is sustained, with costs, with permission to the defendant to plead over within 20 dáys after the service upon it of a copy of the order and payment of costs.
