
    James Brown, Respondent, v. Jacob Horowitz, Appellant.
    (Supreme Court, Appellate Term,
    June, 1901.)
    Breach of warranty — Running away of a horse “ kind and sound in all harness.”
    ' An action for a breach of a warranty that a horse is “ kind and sound in all harness ” is not sufficiently supported by proof that, after he had been driven safely for several hours before a hansom cab, he ran away for some unexplained reason, it appearing that the cab was not adapted to the conformation of his body, that he had previously been gentle, and that the driver was not called as a witness upon the trial nor his absence accounted for.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, eighth district, borough of Manhattan.
    Leroy D. Ball, Jr., for appellant.
    Lyman A. Spalding, for respondent.
   Per Curiam.

This is an action for damages for breach of warranty upon the sale of a horse. The warranty was “ Warranted kind and sound in all harness and good wind.” On the evening of the sale plaintiff, who is a liveryman, hitched the horse to a hansom cab and, after driving him a little, turned him over to one of his drivers. This was about half past six. The driver made three calls with the horse, and about one o’clock in the morning he and the plaintiff, who was driving another cab, went to supper together. After supper they started for the plaintiff’s stable on West Thirty-ninth street, Hew York city. The plaintiff, on his cab, was behind the cab to which was hitched the warranted horse. When they were between Eighth and Hinth avenues, the warranted horse began to run.. The plaintiff whipped up his horse and managed to pass and get in front of the runaway so as to stop it. The cab was somewhat injured. The plaintiff returned the horse to the auctioneer and was tendered back the sum he had paid,.but refused to accept it saying that he proposed to collect further damages. There is nothing in the evidence to show what caused the runaway. It appears that there was a passenger in the cab at the time, but neither he nor the driver was called as witnesses, nor was any attempt made to explain or account for their absence. Former owners of the horse were called, who testified that the horse was kind and had never been known to run away. It was further testified to By persons expert in such matters that the horse was unusually tall and long in the body, and that a horse of such conformation was not well adapted for use in the ordinary hansom cab unless exceptionally long shafts were used. The warranty in the present case was not a specific warranty that the horse was suitable to be driven before a hansom cab, but merely that he was kind and sound in all harness. We do not think that the evidence justified a finding that the warranty had been broken. All that appeared was, that, after the horse had been safely driven for several hours, he ran away. Absolutely no evidence is offered to show how he came to run, and neither the driver, nor the passenger, who may be supposed to know something of the circumstances, has been called upon to state them. It is a fair inference from the failure to call or account for the absence of the driver that his testimony, if produced, would not have added anything to the strength of the plaintiff’s case. Milliman v. Rochester R. Co., 3 App. Div. 109; Cushman v. De Mallie, 46 id. 379. We have, therefore, as the sole evidence of a breach of warranty,' the unexplained fact that the horse ran away. This in our opinion was not sufficient in the face of the positive evidence of the horse’s previous gentleness," and of the necessity, owing to his visible conformation, to especial care in hitching him to the particular vehicle in which it was attempted to use him. The horse having been re-delivered to and accepted by the seller, the plaintiff is entitled to recover the purchase price. The judgment will be affirmed, without costs, if the plaintiff stipulates to reduce it to the sum of thirty-three dollars and thirty-seven cents and that ten dollars of the costs already paid to plaintiff shall be applied to the payment of said judgment, otherwise the judgment will be reversed and a new trial granted, with costs to the appellant to abide the event.6

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment affirmed, without costs, if plaintiff stipulates to reduce it to the sum of $33.37, otherwise judgment reversed and new trial granted, with costs to appellant to abide event.  