
    Abraham Horowitz, Doing Business as The Jarvis Company, Respondent, v. Audomarus Bursens, Appellant.
    Supreme Court, Appellate Term, First Department,
    June 30, 1949.
    
      
      Stanley Zucker and William I. Cohen for appellant.
    
      Herman Frankel for respondent.
   Per Curiam.

The evidence establishes that the television set sold to defendant did not function properly as to channel 5 and was not of merchantable quality and was inadequate for the use to which the defendant had given notice that it was to be applied and this constituted a breach of the implied warranty of merchantable quality provided in subdivision 2 of section 96 of the Personal Property Law (Ryan v. Progressive Grocery Stores, 255 N. Y. 388). Plaintiff may not, therefore, recover, and defendant is entitled to judgment on the counterclaim for the sum of $100 paid on account of the purchase price.

The judgment should be reversed, with $30 costs, and complaint dismissed on the merits, with costs, and judgment directed for defendant on the counterclaim for the sum of $100, with costs.

Hammer, Hofstadter and Eder, JJ., concur.

Judgment reversed, etc.  