
    Patrick McCarthy, Respondent, v. George E. Ellers, Appellant.
    
      Sale of a horse, carriage and equipment — breach of a warranty of the horse — remedy of the vendee — action under a rescission of the sale, and on the warranty without such rescission — return of the articles sold. ■
    Where a person purchases, for a lump sum,- a horse, carriage and equipment, under a warranty that the horse is sound, he may, in the event of the death of the horse from a disease from which it was suffering at the time of the sale, rescind such sale because of the breach of the warranty, and, upon tendering to the vendor the carriage and equipment, maintain an action against the vendor to recover the entire purchase price.
    He may also, without rescinding the sale or returning the carriage and equipment, bring an action against the vendor to recover for the breach of warranty, in which event his measure of damages is the difference between the value of the articles with the horse as. warranted and with the horse as it actually was. If the vendee neglects to return the carriage and equipment, a judgment rendered in his favor for the entire amount of the purchase price is improper, even though the court, as a part of such judgment, orders him to return the carriage and equipment to the vendor. Such a direction on the part of the court is irregular and ineffective, as the return of the carriage and equipment, which is a condition precedent to the vendee’s right to rescind the sale and recover the entire purchase price, must be his voluntary act.
    Appeal by the defendant, George E. Ellers, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered on the 19th day of August, 1904.
    
      Mitchell May, for the appellant.
    
      Walter W. Bahan, for the respondent.
   Hirschberg, P. J.:

The judgment cannot be sustained. The pleadings were oral, the plaintiff complaining “ for return of money on guarantee on sale of a horse.” The proof established that the plaintiff had purchased from the defendant for the lump sum of $175 a horse, carriage and equipments including harness, and that the sale was made upon the defendant’s express warranty that the horse was sound. The horse was afflicted at the time with chronic heaves and died from the effects of the disease shortly after the sale. The judgment awards to the plaintiff the sum of $175 damages. The plaintiff retained possession of the carriage, harness and equipments, and never returned or offered to return them to the defendant after the horse died. The plaintiff could doubtless have rescinded the contract on the discovery of the breach of warranty, and could have returned or have offered to return the property, suing for a return of the entire purchase price, but he could not recover that price while he retained a substantial portion of the property purchased by him. If the action is to be, regarded as one for the damages sustained by the plaintiff because of the breach of warranty, the recovery could not be for the purchase price as such, but must be limited to the difference in the value of the articles with the horse as warranted and with the horse as he actually was, of which there was no proof. The cases cited by the learned counsel for the respondent (Brigg v. Hilton, 99 N. Y. 517; Norton v. Dreyfuss, 106 id. 90, and Argersinger v. Macnaughton, 114 id. 535) undoubtedly sustain his contention that the purchaser may sue the vendor upon the breach of an express warranty which survives acceptance without returning the purchased property, but the remedy in those cases is upon the warranty for the damages incurred and not by way of rescission for a return of the price paid. But the purchaser cannot in the same action sustain a claim for a return of the goods and rescission of the contract, and also for damages for breach of the warranty. (See head note, Horton v. Dreyfuss, supra, 91.)

It appears by the return that the court in rendering judgment ordered that the carriage and harness in possession of plaintiff be returned to defendant.” This was irregular and ineffective. The return must be the plaintiff’s voluntary act if he elect to rescind, and if he elect to retain a portion of the property (assuming but without deciding that he may lawfully do so) the action must be confined to a claim for the damages.

The judgment should be reversed and a new trial ordered.

Bartlett, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  