
    Nathan Bloom, Appellant, v. Daniel Reisman, Henry Rothman and Jacob Bieber, Respondents.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Appeal — judgments and orders appealable — appeal from a judgment dismissing complaint.'
    Sales — warranties — fulfillment or breach — acceptance.
    On appeal from a judgment dismissing a complaint, the respondent is entitled to every favorable inference from the testimony.
    Warranty survives the acceptance of goods, and, while a breach of warranty may he the subject of a counterclaim in an action for goods sold, it is not a defense.
    Appeal by the plaintiff from a judgment of the City Court of the city of New Turk dismissing the complaint.
    Cohen & Shiverts, for appellant.
    Nathan Friedman, for respondents.
   Seabuby, J.

This action was brought to recover the agreed price for goods sold and delivered. Plaintiff proved the sale of twenty-six pieces of corduroy at thirty-seven and one-half cents per yard. The defendants admitted that the plaintiff delivered twenty-six pieces of cordnroy, as follows: twelve pieces on October 30, 1911; eight pieces on October 31, 1911; two pieces on November 1, 1911 and four pieces on November 2, 1911. Plaintiff’s salesman called upon the defendants on or about November fifth and tenth, to solicit another order and no complaint was made about, any part of the delivered goods being defective. The plaintiff’s salesman called on the defendants again on or about November 20, 1911, and the" defendants then complained for the first time, stating that there were “ slight imperfections ” in the goods delivered on October thirtieth, thirty-first, November first and November second. The testimony of the plaintiff’s salesman discloses, that the goods were sold by sample. At the close of the plaintiff’s casé, the learned court below dismissed the complaint, upon the ground that the burden was upon the plaintiff to establish that the goods delivered were equal in quantity to the sample displayed at the time of the sale, and that the plaintiff, had failed to prove this fact. Assuming that the plaintiff failed to prove that the goods delivered were equal in quality to the sample displayed at the time of the sale, it does not follow that the plaintiff cannot recover for the goods actually sold and delivered to the defendants. Indulging the inference to which the plaintiff is entitled upon a dismissal of the complaint at the close of his case, we think the evidence was sufficient to establish that the goods delivered were accepted by the defendants. The sale by sample constituted a warranty that the goods would be equal in quality to the quality of the sample. The warranty survived the acceptance of the goods, and, if there was a breach of the warranty, this fact gave the defendants a cause of action against the plaintiff. It was, therefore, the subject of a counterclaim, and not" a defense to this action "for goods sold and delivered. The plaintiff’s cause of action was complete when he proved the sale, delivery and acceptance of the goods. The evidence did not establish that the goods were inferior to the sample. The court could not properly dismiss the complaint, because some evidence was given as a part of the plaintiff’s case, which tended to sustain the theory of the counterclaim. Certainly, the defendants’ counterclaim was not proved. dSTo defense having been proved, the dismissal of the complaint was erroneous.

The judgment is reversed and a new trial ordered, with costs to appellant to, abide the event.'

Lehman and Page, .JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  