
    Michael Lembo, Respondent, v. Anthony Andola, Appellant.
   Appeals from a judgment in favor of the plaintiff for the sum of $4,699.69, inclusive of costs and interest upon the verdict, entered upon the verdict of a jury after a trial in the Supreme Court, Ulster County, and from an order denying a motion for a new trial. Defendant also appeals from an order denying his motion for a new trial on the ground of newly discovered evidence. The action was for a breach of warranty in the sale and delivery of apples. Defendant expressly warranted the apples to he free from decay and worm holes, and not cider apples. The condition of the disputed apples was an issue of fact which the jury resolved in favor of the plaintiff from conflicting testimony. There was evidence that all the disputed apples were either of a cider grade or a total waste. No reversible error was committed in the reception of inspection certificates from the United States Department of Agriculture. If there was error at all, it was highly technical in nature, not embraced within the objections taken, and did not affect any substantial right of the defendant. Whether plaintiff gave notice of the breach of warranty within a reasonable time was, under the circumstances disclosed, properly submitted to the jury as an issue of fact. The motion for a new trial upon newly discovered evidence was denied upon the ground that defendant had not shown due diligence in attempting to procure the same before trial. To which may be added, we think, the further ground that it is highly problematical whether the new evidence, consisting of storage reports, would have changed the result. Judgment and orders affirmed, with costs of the action and disbursements. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Deyo, J., dissents on the ground that the evidence as to breach of warranty and as to value was indefinite, uncertain and insufficient to support the verdict. It was also error to receive the certificates in evidence. The judgment should be reversed and a new trial granted. In the Matter of the Adoption of Roger M. Zucker, an Infant. David  