
    N. Y. SUPERIOR COURT.
    The Charlotte, Columbia & Augusta R.R. Co., agt. Morris K. Jesup, et al.
    
    
      Special Term,
    
    
      February, 1871.
    It is only where an article is contracted for to be applied to a particular purpose, and in such manner that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, and not to his own, that there is an implied ‘warranty that it shall be reasonably fit for the purpose to which it is to be applied.
    Demurrer to complaint.
    Foster & Thompson, and T. C. T. Buckley, for demurrer.
    
    Ward, Jones & Whitehead, in opposition.
   Freedman, J.

Where a known, defined and described article is actually supplied according to contract, there is not, as a general rule, an implied warranty that it shall answer the particular purpose intended by the buyer, although that may have been communicated to the seller (Chanter agt. Hopkins, 4 M. & W., 393 ; Ollivant agt. Bayley, 5 Q. B., 288.)

It is only where an article is contracted for to be applied to a particular purpose, and in such manner that the buyer necessarily trusts m the judgment or skill of the manufacturer or dealer, and not to his own, that there is an implied term or warranty that it shall be reasonably fit for the' purpose to which it is to be applied. (Brown agt. Edgington, 2 M. & G., 279 ; Jones agt. Bright, 5 Bing., 533; Story on Sales, § 371).

The complaint does not set forth any such contract, and under the contract, which is pleaded, the acceptance ot the goods and their retention, after a reasonable time and opportunity for examination had elapsed, must be held an admission of due performance by the seller, and a waiver on the part of the buyers of all defects in the quality of the goods (Reed agt. Randall, 29 N. Y., 362 ; Weaver agt. Wisner, 51 Barb., 641; Leavanworth agt. Parker, 52 Barb., 135; Sprague agt. Blake, 20 Wend., 64.)

Defendants are entitled to judgment upon the demurrer, but plaintiffs may have leave to amend upon payment of costs.  