
    (63 Misc. Rep. 643.)
    MITCHELL v. ROWLEY.
    (Chautauqua County Court.
    June. 1909.)
    1. Sales (§ 440)—Action fob Price—Warranty—Breach.
    Where, in an action for the price of a cow, defendant pleaded breach of warranty and claimed that the cow was valueless, evidence of the value of the cow at the time of the trial was inadmissible without proof that she was in the same condition then as when sold.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. § 1209; Dec. Dig. § 440.] '
    2. Trial (g 28)—View—Condition of Animal—Time.
    Where, in an action for the price of a cow, defendant claimed breach of warranty, the court erred in directing a view of the cow at the time of the trial, in the absence of proof that she was then in the same condition as when sold.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. § 79; Dec. Dig. § 28.]
    
      3. Sales (§ 442)—Breach op Warranty—Counterclaim—Measure op Damages. '
    A buyer’s measure of damages for breach of warranty in the sale of a cow was the difference between the value of the cow had she been as warranted and her value in her real condition when sold.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. § 1285; Dec. Dig. $ 442.]
    Appeal from Justice Court.
    Action by Albert J. Mitchell against Herbert Rowley. From a justice’s judgment for defendant on- a counterclaim, plaintiff appeals.
    Reversed, and new trial ordered.
    C. M. Reed, for appellant.
    Fred R. Peterson, for respondent.
    
      
      For other cases see same topic & § number In Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. &. Am. Digs. 1907 to date, & Rep’r Indexes
    
   OTTAWAY, J.

This is an action brought before a justice of the peace of the town of Stockton to recover upon a promissory note given for the purchase of a cow. The defendant, answering, alleges that the plaintiff warranted the cow purchased by him to be all right; that in truth and in fact said cow was diseased and valueless. Upon the trial of said action the defendant gave no evidence of the value of the cow at the time he purchased the cow of the plaintiff. He attempted to demonstrate the damages which he- claimed by an exhibition of the cow at 'the time of the trial and by evidence as to the condition of the cow át that timé. The trial occurred several months after the purchase of the cow. No evidence was produced to show that the cow was in the same condition at the time of the trial as upon the day of sale. If defendant was entitled to recover upon his counterclaim, his measure of damages would have been the difference between the value of the cow hád it been as warranted by the plaintiff and its value in its real condition at the time of the sale. There seems to. be an absence of proof in this respect. It was error for the justice to receive proof as to the value of the cow at the time of the trial without evidence showing the cow in the same condition as at the time of the sale.

It was also error for the justice to direct a view of the cow at the time of the trial; the trial occurring several months after the sale, and there being ho evidence to show that the cow was in the same condition at the time of the trial as at the time of the sale. Buffalo Structural Co. v. Dickinson, 98 App. Div. 355, 90 N. Y. Supp. 268; People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368.

The judgment in this case must be reversed, and,, the defendant having failed to offer any proof as to the value of the cow at the time of the sale under the rule prescribed as to the measure of damages in cases of this character, the judgment is against the weight of evidence, and a new trial is" ordered before the same justice, Amos Carr; said trial to be had June 19th at 10 o’clock a. m., at the office of said justice in the town of Stockton, Chautauqua county, N. Y., with costs to the appellant to. abide the event.

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