
    BRICE P. WALLING, Plaintiff and Appellant, v. CHARLES H. SCHWARTZKOPF, Defendant and Respondent.
    Sale of goods with warranty.—Recoupment.—Indefinite pleading, REMEDY FOR.
    The rule that the acceptance and retention of the goods by the buyer without complaint of defects, after a reasonable time and opportunity for examination has elapsed, is a waiver of all objections to quality, and estops him from recovering damages for defects, applies only to cases of executory contracts without warranty. In case of a warranty, his right to recoup the damages arising from a breach of the warranty survives the acceptance (Day e. Pool, 52 IT. T. 416 ; Bounce v. Bowe, 57 Id. 16; Marcus v. Thornton, et al., reported supra).
    
    Held, that both defendant’s counterclaims were good on demurrer. If greater certainty and definiteness were required, the remedy was by motion.
    Before Sedgwick and Freedman, JJ.
    
      Decided January 6, 1879.
    Appeal from an order, and the judgment entered thereon, overruling plaintiff’s demurrer to two counterclaims set up in the answer of the defendant, with leave to plaintiff to reply on the usual terms.
    The complaint is for an alleged indebtedness upon an account for milk sold and delivered. This account is not put in issue by the answer, which contains two distinct counterclaims. To these plaintiff demurred on the ground of insufficiency.
    The first states a breach by plaintiff of the very contract under which the milk was sold and delivered, the particulars of the breach, and the loss sustained by the defendant thereby.
    The second is based upon a breach of warranty. It sets forth the warranty of the milk, its breach, and the particulars thereof, and defendant’s loss in consequence thereof.
    
      J. Stewart Ross, attorney, and counsel, for plaintiff and appellant,
    Cited : Reed v. Randall, 29 N. Y. 358, and cases cited; Rust v. Eckler, 41 Id. (2 Hand), opinion of Daniels, J., p. 491, and of Woodruff, J., p. 494; Delafield v. DeGrauw, 42 Id. (3 Keys), 467; Normington v. Cook, 2 N. Y. Supm. Ct. (T. & C.) 423 ; Leavenworth v. Packer, 52 Barb. 132; Flanagan v. Demarest, 3 Robt. 173 ; Woodruff v. Peterson, 51 Barb. 252.
    
      Simon Sultan, attorney, and of counsel, for respondent,
    Cited : Lee v. Beebe, 6 Weekly Dig. 206 ; Vischer v. Greenbank Alkali Co., 11 Hun, 159 ; McKnight v. Devlin, 52 N. Y. 399 ; Mount v. Lyon, 49 Id. 552 ; Moak Van Santvoord's Pleadings, 3 ed. 425 ; Muller v. Eno, 14 N. Y. 507; Rust v. Eckler, 41 Id. 488 ; Day v. Pool, 52 Id. 416 ; Parks v. Morris Ax & Tool Co., 54 Id. 586 ; Vincent v. Leland, 100 Mass. 432; Willard v. Merritt, 45 Barb. 297; Benjamin on Sales, §§ 894, 896, 869, 870, 880; Wells v. Selwood, 61 Barb. 238.
   Freedman, J.,

wrote for affirmance of order and judgment, with costs, with leave to plaintiff, upon payment of such costs and those imposed below, to withdraw his demurrers and serve a reply within twenty days.

Sedgwick, J, concurred.  