
    SMITH v. LAZIER GAS ENGINE CO.
    (Supreme Court, Appellate Division, Fourth Department.
    March 29, 1904.)
    1. Complaint—Cause of Action Alleged—Nonpebfobmance of Contbact— Wabbanty. ,
    A complaint set out a contract by which defendant agreed to furnish an engine which it warranted would develop a certain power, for which plaintiff agreed to pay $570 and a secondhand engine, to be taken at $100; alleged that plaintiff, relying on the warranties, set up the engine, and attempted to run it, but could not; then alleged facts showing a breach of the contract to furnish the engine agreed on, its removal from plaintiff’s premises, the expense he was put to in setting it up, the loss of the use of his mill, and failure of defendant to return or pay for the secondhand engine; alleged that the rental value of plaintiff’s mill was $100 a month, and that by reason of the premises, and of the breach of warranty, and by reason of the moneys so necessarily expended about the engine, and of the loss of trade and of the loss of the rental value of the mill plaintiff was damaged $800. Held, that the complaint alleged not a cause of action on the warranty, but one for nonperformance of contract.
    Appeal-from Special Term.
    Action by Henry Smith against the Lazier Gas Engine Company. From a judgment for plaintiff and from an order denying a motion for new trial, defendant appeals. Affirmed.
    The following is the opinion of the court below. (Nash, J.):
    The defendant moves for a new trial principally upon the ground that, the action being upon an express warranty, the plaintiff is not entitled to recover for the reason that no action will lie on a warranty unless the title to the property alleged to have been warranted has fully passed to the buyer. English v. Hanford, 75 Hun, 428, 27 N. T. Supp. 672. This point was not made at the trial. The plaintiff’s counsel upon the trial referred to his cause of action as one for a breach of warranty. The defendant’s counsel moved to dismiss the complaint upon the ground that there had been no evidence of any breach of the warranty set up in the complaint. The complaint does not allege a cause of action upon the warranty. The gravamen of the complaint is nonperformance of the contract by the defendant. A copy of the contract is set out in the complaint, by the terms of which the defendant agreed to furnish a gas engine, which the defendant warranted would develop twenty-five horse power, for which the plaintiff agreed to pay $570 and a secondhand steam engine and boiler, which it is alleged was agreed to be taken by the defendant at $100; that, relying upon the warranties contained in the agreement, the plaintiff set up said engine in his mill; that, relying on said warranties, the plaintiff attempted to run and use the said engine, and was unable to use it; and then proceeds to allege the facts showing not a breach of the warranty, but a breach of the contract to furnish the engine agreed upon, the removal of the engine from the plaintiff’s premises, the expense the plaintiff was- put to in setting up the engine, the loss of the use of the plaintiff’s mill, and the failure of the defendant to return or pay for the secondhand steam engine and boiler which the plaintiff had delivered to the defendant, and claimed damages in the sum of $800. The last subdivision of the complaint is as follows: “(9) That the fair rental value of the plaintiff’s said gristmill is one hundred dollars per month, and that by reason of the premises, and of the said breach of warranty contained in said agreement so made as aforesaid, and by reason of the moneys so necessarily expended in and about said gas engine, and of the loss of trade and custom, and of the loss and depreciation of and in the .rental value of the plaintiff’s said gristmill, said plaintiff has been damaged in the sum of $800.” The plaintiff, upon the trial, gave evidence tending to establish the allegations of the complaint. No evidence of damages as fpr. a breach of the warranty was given or offered by the plaintiff. The case was not submitted to the jury as an action to recover damages for a breach of the warranty. In the charge of the jury it was stated that in the contract to sell the company warranted the engine to run smoothly and to develop 25 horse power. There was no other reference to the warranty in the charge. The case of the plaintiff for a breach of the contract—its nonperformance—was stated; and the jury were instructed that, if they found that the defendant had failed to establish the defense of a settlement, the verdict should be for the plaintiff for such damages as he had sustained, and that would be the price of the steam engine and boiler, freight, cartage, and setting up the gas engine, and the value of the-use of the mill during the time the plaintiff had not been able to use it. There was no exception to the charge, either as to the manner of stating the case to the jury or to the instruction as to the damages the plaintiff was entitled to recover. The case having been tried upon what seems to me is the correct theory, I am of the opinion that the verdict should Stand.
    Motion for a new trial denied, with $10 costs.
    Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
    Elbridge L. Adams, for appellant.
    Frank K. Cook, for respondent.
   PER CURIAM.

Judgment and order affirmed, with costs, upon opinion of Nash, J., delivered at Special Term.  