
    Edward McCullough, Respondent, v. Harris Shapiro et al., Appellants.
    (New York Common Pleas
    Additional General Term,
    August, 1895.)
    An agreement by a vendor to remove the pump furnished by him should it be declared by,an-expert to be other than as represented, contemplates that the examination shall take place and the opinion be made the basis of a demand for removal prior to the trial of an action for the purchase price, and cannot be made available ’as a defense merely by testimony of an expert upon the trial.
    Appeal from a judgment rendered by the justice of the First. Judicial District Court, in favor of the plaintiff.
    Action for work, labor and services and materials furnished.^
    
      Albert L. Phillips, for appellants.
    
      William J. A. Caffrey, for respondent.
   ' Bischoff, J.

Plaintiff’s claim was for the agreed price of a pump furnished by him to the defendants, and the value of work done at their request, together with some small items for fittings. '

It is contended that the pump did not accord in quality with the agreement; as to this there is merely a fair conflict of evidence, with which we have not to do.

A point is made that plaintiff was bound by a certain admission that he had agreed to remove the pump should it be declared by “ an expert ” to be otherwise than as represented. The declarations of the “ expert ” relied upon are those of a witness, called at the trial by the defendants, by whose testimony the plaintiff’s evidence as to the quality ,of the pump was contradicted, such witness having been called upon by defendants to examine the pump for the first time within one or two days before the trial.

It is not at all clear that the justice was- bound to find this witness an expert,” nor to credit his testimony as against the plaintiff’s; moreover, it was but reasonable to infer that the plaintiff’s statement above noted intended at least that the expert’s identity and the time of the examination should have been disclosed to him in advance of the trial, and the expert’s opinion made the basis of a demand that the pump be removed.

Again, it is contended that the labor sued for was expended in installing the pump, which service was to have been rendered without payment. The express testimony of the plaintiff, however, appears in support of the finding that this work was done entirely apart from any connected with the pump.

; The record is found to uphold the recovery with regard to the value of each item sued for, and, no other questions ■appearing in the case, the judgment must be affirmed, with -costs. -

Giegerich, J., concurs.

Judgment affirmed, with costs.  