
    Solomon Silberstein and Meyer Silberstein, Doing Business as S. Silberstein & Son, Appellants, v. Harry Blum and Louis Blum, Copartners, Doing Business under the Firm Name and Style of Blum Brothers, Respondents.
    First Department,
    May 7, 1915.
    Sale — action for goods sold and delivered — defense — breach of warranty—waiver by failure to return or offer to return goods within reasonable time — damages surviving acceptance.
    Where, in an action for goods sold and delivered, the defendants pleaded breach of warranty as to quality, both as a defense and as a counterclaim, and it appeared that although only a brief time was necessary to make an examination of the goods, the defendants made no attempt to make such examination and made no offer to return the goods until more than two weeks after them receipt, the breach of warranty will be deemed to have been waived.
    The only right which survived defendants’ acceptance of the goods was one for damages, which was not sustained by the evidence.
    
      Appeal by the plaintiffs, Solomon Silberstein and another, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19 th day of December, 1914, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District.
    
      A. Joseph Geist, for the appellants.
    
      Lawrence H. Sanders, for the respondents.
   Hotchkiss, J.:

The action was for goods sold and delivered.

The answer contained denials and a separate defense, which was also pleaded as a counterclaim, that the goods were warranted of a certain quality, to which warranty they did not conform; that plaintiffs had refused defendants’ offer to return, all to defendants’ damage in a sum identical with the sale price of the goods as alleged in the complaint. On the trial plaintiffs admitted that the goods had been sold by sample and were to be first class in quality, to which standard plaintiffs claimed they in fact conformed.

The testimony offered in defendants’ behalf showed that the goods did not conform to the sample by which they were sold and on this issue the defendants’ evidence overbore that of the plaintiffs. But it also appeared that the goods were delivered on the day of their sale, July 28, 1914, or the day after, at which time a bill for the price was rendered. No attempt was made to examine the goods then. Louis Blum, who seemed fco have had charge of the matter for the defendants, left the city on a business trip on the third of August and did not return until the thirteenth or fourteenth. On this trip he sought to sell garments to be manufactured from the goods in question, but was unable so to do to any satisfactory extent. Blum returned to the city on the thirteenth or fourteenth and on some day between that and the eighteenth he had a conversation with one of the plaintiffs, in the course of which Blum said that the market conditions had not been satisfactory; that the goods, which were contained in cases, were then intact, and he asked plaintiffs to take back one of the cases, in which event he said defendants would pay for the other. Plaintiffs refused this offer and thereupon Blum unrolled one of the pieces and said that the material looked imperfect, but if the goods were right defendants would have to pay for them and he would have them examined. The precise time necessary for an examination of the goods contained in the two cases did not appear, but sufficient did appear to show that it was but brief. On the day of the foregoing conversation, or the day after, plaintiffs commenced this action, and within . a few days thereafter defendants sent the goods to examiners, who pronounced them imperfect and not of first quality. There was no offer to return the goods until defendants served their answer.

It is apparent from the foregoing that notwithstanding a reasonable time had elapsed between "the delivery of the goods and the conversation above referred to, to permit of an examination of the goods, and for their rejection had they been found not to conform to the sample, defendants made no attempt to examine and made no offer to return. So far as the breach of warranty constituted a defense, it was waived by the failure to return or offer to return the goods within a reasonable time. (Nash v. Weidenfeld, 41 App. Div. 511; affd., 166 N. Y. 612; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], art. 5, § 150, added by Laws of 1911, chap. 571.) The only right which survived defendants’ acceptance of the goods was one for damages (Id.), which was the cause of action asserted in the counterclaim. But the difficulty with this feature of defendants’ case is that there was no proof that they suffered any damage. Such testimony as defendants offered on this point was to the effect that the goods had risen in value.

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs, and judgment entered for the appellants for the sum demanded in the complaint, with interest, besides costs in the Municipal Court and at the Appellate Term.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Determination and judgment reversed and judgment entered for appellants for the sum demanded in the complaint, with interest, with costs to appellants in all courts.  