
    The P. H. & F. M. Roots Company, Appellant, v. The New York Foundry Company, Respondent.
    (Supreme Court, Appellate Term,
    November, 1906.)
    Salés — Waiver of defects by purchaser — Acceptance of machinery.
    Where, in an action upon a promissory note, given for the purchase price of a machine used in foundry work, no counterclaim is set up, but defendant relies solely upon breach of an express Warranty, it must show a rescission of the contract by proof of an offer to return the machine; and a refusal to so charge, on plaintiff’s request, is error for which a judgment in defendant’s favor will be reversed.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered in favor of the defendant after a trial before the court and a jury.
    
      Burke & Fay (Daniel Burke, of counsel), for appellant.
    John L. Walsh (George B. Hayes, of counsel), for respondent.
   Gildeesleeve, J.

The plaintiff brought this action to recover upon a promissory note made by the defendant, the making, execution and nonpayment of which were conceded upon the trial. The defense, thereto was that the note was given for a machine used in foundry work and called a “ blower,” and that said blower was warranted to be so constructed that .it could be run by the power of a ¡No. 38 horse-power Delavergne oil engine, and that said blower “was not of the kind and character represented and warranted by this plaintiff.” ¡No counterclaim was set up, and it is clear that the defendant relied upon the breach of an express warranty, solely, as a defense to the cause of action set up in the complaint. In such a case the defendant must show a rescission of the contract, by showing that he has returned or offered to return the goods purchased by him. Norton v. Dreyfuss, 106 N. Y. 90, 95. Although the defendant did not plead such rescission, and it was shown that the blower was in the possession of the defendant and in use by it at the time of the trial, the president and manager testified, without objection, that, at one time after the blower had been in his possession for some time and after he had given the note for its purchase price, he had told the plaintiff’s representative “ to take it out of my foundry,” to which reply was made,.“ You leave it where it is, I will put a 5í or 6 Boots’ blower in that will run your engine,” and also, that “ I have been ready at all times to return it.” At the close of the judge’s charge to, the jury, the plaintiff’s attorney made this request: “ I ask your honor to chárge the jury, that, under this pleading, the defendant must prove an offer to return the blower, or the reasons for not doing so.” The court: “ I decline to so charge.” Exception. This request should have been granted. The testimony as to an offer to return was very slight and, while perhaps sufficient to have warranted the jury in finding that such an offer had been made, nevertheless, the effect of the refusal of the judge to charge that it was essential to a recovery by the defendant that such an offer should be proven was to nullify the evidence given upon that question and to permit the jury to find for defendant without such proof. It is, therefore, impossible for this court to say whether their verdict was based upon the evidence or upon the erroneous instruction given by the court.

Du geo and Dowling, JJ., concur.

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