
    Charles Macrea, Respondent, v. Gotham Rubber Company, a Corporation, Appellant.
    Second Department,
    June 8,1906.
    Guaranty of quality of goods—measure of damages when plaintiff has had beneficial use of goods guaranteed.
    Although hose guaranteed to sustain a certain pressure and to last a year dees not meet the guaranty, a purchaser who, with knowledge of the defects has used the hose for a considerable* period, is only entitled to recover the difference between the value of the hose as guaranteed and its actual value.
    He cannot recover the whole purchase price.
    Appeal by the defendant, the Gotham Rubber Company, á corporation, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 2d day of August, 1905.
    
      Edward A. Richards, for the appellant.
    
      Wilmot L. Morehouse, for the respondent.
   Jenks, J.:

The plaintiff bought and paid for rubber fire hose of the defendant. The evidence for the plaintiff is that it was guaranteed to withstand 300 pounds pressure and to last for a year, and if it did . not, the defendant would make it good. He sues to recover damages in the sum paid for the hose and interest from the date of payment, on the theory that the hose did not last for the year. The court gave judgment to him in that sum. It appears that although the plaintiff was not satisfied soon after his purchase, he used the- hose every day and many times on some days in his business for-considerable periods of time before .it gave out.. I think that the action is well' brought, but as upon the plaintiff’s own version the hose was used- by him,, it was of some value. Therefore, the measure of damages .was the difference between the value of the hose if it 'had continued to serve his .purposes for the year, and its actual value. (Hooper v. Story, 155 N. Y. 171.) The judgment is reversed and a new trial ordered, with hosts to abide the event. - -

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Hooker, Gaynor, Rich and Miller, JJ., concurred.

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