
    The Merriam Paper Company, Respondent, v. The New York Market Gardeners’ Association, Appellant.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Sales: Warranties — Implied warranties — Goods sold for particular purpose: Waiver of defects by purchaser — Acceptance as waiver.
    In an action to recover a balance alleged to be due on a sale of two lots of paper delivered in response to orders, the plaintiff will not be held to have made an express warranty of weight, quantity and size, in the absence of proof that the paper was billed or invoiced as of certain weight and size.
    Even though defendant informed plaintiff that the paper was wanted for seed-bags but exacted no promise of fitness for that purpose there arose no implied warranty of fitness for that or any other purpose.
    Defendant, having received and used the two lots of paper without rejection or offer to return and paid for one in full and in part for the other, will he held to have accepted the paper as complying with the terms of purchase and sale and may not counterclaim for breach of warranty.
    ' Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, second district, borough of Manhattan.
    Holt, Warner & Gaillard (Thomas G. Prioleau, of counsel), for appellant.
    Almet Reed Latson, for respondent.
   MacLean, J.

In this action to recover a balance alleged to be due for the sale and delivery of a quantity of paper, the defendant counterclaimed for a breach of warranty upon two lots of paper, used without rejection or offer to return, and on which payment had been made in full for one, and in part for the other. Premising the acceptation of the evidence warranting the findings of fact involved in the determination in favor of the plaintiff, which we will not disturb, and there being no evidence that the two lots of paper were billed or invoiced as of certain weight and size, the plaintiff may not be said, by the mere delivery of the paper in response to the orders, to have made an express warranty of the weight, quantity and size of the paper. Dounce v. Dow, 64 N. Y. 411. Even though the defendant informed the plaintiff that the paper was wanted for making seed-bags, it may not be implied from that and the mention of weight, without exaction of a promise as to fitness for that purpose, that the plaintiff warranted the paper fit for the purpose indicated, or any other. No collateral agreement being shown, the defendant must be held on the case as presented here to have accepted the paper as complying with the terms of the purchase and sale.

Gtldersleeve and Bischofe, JJ., concur.

Judgment affirmed with costs.  