
    George W. Lugg, Respondent, v. Montgomery Ward & Co. Inc., Appellant.
   Appeal from a judgment in favor of the plaintiff in a negligence action for the sum of $2,628, entered upon the verdict of a jury after a trial in the Supreme Court of Albany County. Appeal is also taken from an order denying defendant’s motion to set aside the verdict and for a new trial. The action was for personal injuries suffered by plaintiff by reason of an alleged breach of implied warranty, in connection with the sale of a hydrometer. The appellant operates a retail department store and sold the hydrometer in question to the respondent on December 1, 1954. It consisted of three parts, a glass tube with a rubber bulb, a float and a rubber stopper with a hose. It 'iras sold packaged and the buyer had to nut it together. Respondent claimed that when he was putting the instrument together and pressing the rubber stopper in the glass tube that the tube broke and he received the injuries complained of. Appellant claims on this appeal that respondent failed to present any evidence to the effect that he properly attempted to insert the stopper in the tube. The testimony of the plaintiff was sufficiently clear we think as to the manner in which he attempted to insert the stopper in the tube. As a matter of fact, he attempted to say that he “was pressing the stopper carefully in the tube” and on motion of the appellant this testimony was stricken out. Nevertheless there was enough testimony left for the jury to determine whether appellant violated an implied warranty that the hydrometer was reasonably fit for the purpose for which it was sold and that it was of merchantable quality. Judgment and order unanimously affirmed, with costs. Present — Poster, P. J., Bergan, Coon, Halpern and Gibson, JJ.  