
    Arthur M. Levy, Appellant, v. William W. Redfern, Respondent.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Sales: Waiver of defects by purchaser — Acceptance as waiver; Remedies of seller — Action for price — Defenses — Counterclaim.
    In an action for the price of goods sold, where the defendant alleges that the goods were to be delivered to him in Brooklyn in perfect condition and that one of the articles was different from that purchased and another was damaged,, and where it appears that the purchaser kept the articles for about four months without making complaint, it was error to dismiss the complaint. The defendant at most could only recoup such damages as he might prove from plaintiff’s breach of warranty.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fourteenth district, borough of Manhattan, rendered in favor of the defendant.
    B. F. Foster, for appellant
    Jerry A. Wernberg, for respondent
   Per Curiam.

This action was brought to recover the value of certain goods sold to the defendant by the plaintiff’s assignor. Among the articles sold were a screen, lamp stand and shade at the agreed price of $179. The answer sets up that plaintiff’s assignor and the defendant entered into an agreement under the terms of which there were to be delivered to the defendant in Brooklyn, N. Y., the aforesaid articles in perfect conditionthat the lamp stand delivered was not the one purchased and the screen was not in “ perfect condition.” The defendant also set up a counterclaim for damages by reason of the defective condition of certain other goods purchased by him of plaintiff’s assignor and asked judgment for $125 against plaintiff for that amount. The justice dismissed the complaint and rendered judgment in favor of the defendant upon his counterclaim for $95. The giving of the judgment against the plaintiff is conceded to have been error, and the defendant consents that the judgment be modified by striking out the amount of recovery and rendering judgment in favor of the defendant upon the merits. The dismissal of the complaint was, however, clearly error. The sale was made to the defendant in March, 1905, and the goods were to be delivered to him as before stated in Brooklyn. He received them shortly after, retained them and, so far as appears by the record, made no complaint relative to the alleged defects until in July following. Bnder such circumstances there was a question as to whether or not he did not waive any defects that might have existed in the goods at the time of their delivery. Pierson v. Crooks, 115 N. Y. 539. At most he could only recoup against the plaintiff’s claim such damages as might be shown to have been created by reason of a breach of warranty on the part of the plaintiff.

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

Gildebsleeve and Ambito, JJ., concur.

MaoLeah, J. (concurring.)

Apparently there were no defects, not visible upon ordinary inspection, in the goods when purchased in Arkansas, and no suggestion thereof to the plaintiff upon their arrival in Brooklyn. Remonstrance, after more than reasonable time and opportunity for inspection had passed, was insufficient and a waiver by the vendee, who seems to have relied more upon the personal undertaking of the auctioneer than upon a guaranty by the vendor.-

The judgment should be reversed and a new trial ordered.

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