
    STINESVILLE & B. STONE CO., Respondent, v. WHITE, Appellant.
    (City Court of New York, General Term.
    October 26, 1897.)
    Action by the Stinesville & Bloomington Stone Company against George W. White. Parsons,
    Shepard & Ogden, for appellant.
    Jacob Fromme, for respondent.
   PER CURIAM.

The plaintiff sold and delivered stone to the defendant. This action was brought to recover the agreed-upon value of the. same. The defendant pleaded, among other things, that the plaintiff warranted and agreed that the stone to be shipped to him under such agreement should be the best quality of stone, and' in first-clags condition, and thoroughly scappled, and that it should not weigh more than 160 pounds to the cubic foot; that the stone shipped was worthless, and a large portion was not scappled, and weighed on an average 175 pounds to the cubic foot, and thereby damage was done to the defendant. The warranty alleged by the defendant, in our opinion, survived the acceptance by him of the stone, and any damage done him by reason of its violation was a proper counterclaim against the plaintiff’s cause of action. Upon the trial the defendant attempted to introduce evidence tending to sustain his counterclaim and prove his damage, and such evidence was excluded by the trial judge; and his ruling in that respect was error, and entitled defendant to a new trial. Judgment reversed and a new trial ordered, with costs to the appellant to. abide the event.  