
    Elmer Chase, Resp’t, v. Albert E. Nichols, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    1. Sale — Wabeanty.
    Pending negotiations for the sale of a horse plaintiff noticed a defect on his leg, hut was informed it was natural. Subsequently defendant’s, employee warranted and agreed that if the horse went lame on account of the defect within six months there should be no sale. Plaintiff took the horse, which went lame from the defect within the time named. There was evidence that defendant said that the employee was authorized to warrant against the defect. Held, that defendant was liable and that the measure of damage was the depreciation in value by means of the defect.
    2. Same — Evidence.
    Error in the admission of evidence of an agent in proof of his authority is cured by proof of statements of his principal that lie had such authority.
    
      Appeal from judgment of county court in favor of plaintiff, entered on verdict
    Action for breach of warranty on the sale of a horse.
    
      Wm. B. Lee ( Wm. L Thorn, of counsel), for app’lt; William Downing (Hackett & Williams, of counsel), for resp’t
   Barnard, P. J.

The cause of action was fully proven. The complaint averred a general and a special warranty of a horse upon a sale by defendant to plaintiff. The proof showed that the plaintiff examined the horse in the presence of defendant The defendant called the attention of the plaintiff to a defect apparent on the hind leg of the horse, which he said was natural, that the horse “ was born that way.” The sale was not concluded at that time. A day or two after one Cusno, an employee of the defendant, brought the horse to plaintiff. The plaintiff declined to buy on account of the defect in the hind leg “ that he was afraid the joints were weak." Cusno thereupon warranted and agreed that if the horse went lame on account of this defect it should be no sale. The price was agreed upon and the plaintiff took the horse, which went lame from the defect within six months. It was improper to receive evidence of the agent Cusno in proof of his own agency. Starin v. Genoa, 23 N. Y., 439. The defect was cured however by the other evidence. The defendant was proven to have said that Cusno was authorized to warrant against the curb which the defect was said by experts to be. The defendant was told what Cusno had said about warranting against the defect and did not deny his authority. The defendant when asked to make reparation said he would inquire of Cusno what he had undertaken on the sale and see the plaintiff in respect to a settlement All this established the warranty.

It was an erroneous ruling against the defendant to reject the questions put to defendant whether he had authorized Cusno to warrant against the lameness or to warrant at all. The ruling was cured and the defendant was permitted to detail the instructions he gave to Cusno.

The measure of damage, was the depreciation in value by means of the defect. This would be ascertained by proof of the value of the horse as he was and as he would have been if the defect did not exist

Such proof was given by witnesses who knew the value of horses as appeared by their testimony.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.  