
    Frank McSwegan et al., Appellants, v. The Gatti-McQuade Company, Respondent.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Sales — Warranties — Express warranties — Working qualities of machinery: Remedies of purchaser — Rescission — Breach of warranty.
    The plaintiff’s, agreement to set up a second-hand machine, purchased from them by defendant whose foreman had previously examined it, and put it in good working order does not amount to a warranty that it will do the particular work for which the defendant requires it; and the plaintiffs’ failure to put the machine in good working order would not justify defendant in rescinding the sale, but would only entitle it to damages.
    Appeal by the plaintiffs from a judgment in favor of the' defendant, rendered in the Municipal Court of the city of Mew York, Seventh District, borough of Manhattan.
    Bigham & Wagner (Oscar Wagner, of counsel), for appellants.
    Peck & McCann (Rollin Tracy, of counsel), for respondent.
   Scott, J.

It is difficult to understand upon what theory the court awarded the judgment which was rendered in this case. The action was for the balance claimed to be due upon a pressing' machine sold by plaintiffs to defendant, and for certain other materials furnished and work done. The defendant pleaded a general denial and a breach of warranty, counterclaiming for the amount already paid for the machine. The court awarded, defendant the full amount of its counterclaim, and refused any recovery to the plaintiffs, although it is conceded that plaintiffs were entitled to recover all or a considerable part of their claim, outside of the claim for the balance of the purchase price of the machine.' Of any warranty, there is not.the slightest evidence. The machine was apparently a second-hand .one, and defendant sent its foreman to examine it before purchasing, and made the purchase on his report. The nearest and only approach to any agreement as to the manner in which the machine would work is contained in the evidence of the defendant, who stated, in effect, that one of the plaintiffs agreed to set the machine up and put it in good working order, and this agreement is denied by the plaintiff who-is said to have made it. At the most, however, this would not amount to a warranty that the machine, when put in order, would do the particular work for which the defendant required it. And even if the- plaintiffs promised to put the machine in good working order and failed to do so, this would not justify a rescission of the sale and a recovery of the purchase price, but merely damages for the failure to fulfill the particular contract as to setting up the machine.

The judgment as rendered finds no support in the evidence and justice requires that it.be reversed.

Tbuax and Bischofe, JJ., concur.

Judgment reversed and new trial granted, with costs to appellants to abide event.  