
    George H. Richardson, App'lt, v. Jonathan Levi et al., Resp'ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    1. Sale—Acceptance.
    If one purchasing property without warranty is satisfied that when received by him it does not comply with the terms of sale, he must notify the vendor promptly and offer to return it; and if, after opportunity to ascertain defects in the property, he does not promptly notify the vendor or offer to return it, he will be deemed to have accepted it.
    2. Same.
    A complaining letter does not amount to a rejection or offer to return.
    3. Same—Notice.
    A delay of five days after receipt in giving notice held too long in case of perishable goods.
    4. Appeal—Justice’s court—New trial.
    Upon appeal from a justice’s court where a new trial was not asked for in the appellate court, the general term has no power on reversing the judgment to grant a new trial.
    Appeal from judgment of the Schenectady county court, affirming judgment of a justice’s court in favor of plaintiff for thirteen dollars, and setting the same off against the costs in that court, which were awarded to respondents.
    
      Robert J. Landon, for app’lt; Hastings & Schoolcraft (J. Teller Schoolcraft, of counsel), for resp’ts.
   Herrick, J.

The plaintiff commenced an action against the defendants in the justice’s court of Schenectady county to recover the purchase price of bananas sold by him to the defendants. The defendants admitted the sale and delivery of the bananas, but alleged that they were purchased by the defendants in pursuance of an agreement that the bananas were to be good and merchantable bananas when they were received by the defendants at Schenectady, N. Y. That when said defendants received said bananas at Schenectady, N. Y., they were not good, merchantable bananas, and defendants at once notified plaintiff, and then and there refused to accept the said bananas.

Upon the trial, the defendant who personally made the agreement testified that he called upon the plaintiff at his store in New York city, that the plaintiff showed him some bananas, and that he said: “I don’t like them; I want some half green and half ripe No. 2 bananas, in good condition when they reach me at Schenectady, and when they are received by me at Schenectady, if they are not good, merchantable bananas, they are yours and not mine.” “ He said they were seven shillings a bunch. They sent me twenty-four bunches. I received them on March 14th; they were sent on March 13th ; they were all rotten when they came ; we did the best we could and sold them for what we could ; the bananas were worth ten shillings a bunch here; there were twenty-four bunches ; they were worth five dollars ; we sold them because we could not send them back; I sent them a check for thirteen dollars, and they sent it back ; I sent the check because I did not want trouble. ” He furthermore testified, under the plaintiff’s objection, that he sold the bananas because they could not be kept and were in an over ripe condition. On the 19th of March the defendants sent the plaintiff a letter, of which the following is a copy:

“ Schenectady, 3, 19, ’90.
George H. Richardson, Esq.
Deab Sib—The bananas must have been heated too much, as they arrived in a very poor condition and are hardly saleable.
“Eesp.,
“ J. Levi & Co.”

The evidence here set forth presents substantially the defendants’ case. In the justice’s court a verdict was rendered in favor of the plaintiff for the sum of thirteen dollars, and from the judgment entered thereon the plaintiff appealed to the county court; the county court affirmed the judgment of the justice’s court; this, I think, was error.

The contract of sale was ah executory one. Reed v. Randall, 29 N. Y., 358-61; Coplay Iron Co. v. Pope, 108 id., 232; 13 St. Rep., 480. There was no warranty. The defendants’ only claim is, that they stated that the bananas were to be in good condition when they reached Schenectady; if they were not good, merchantable bananas, that they were to be the plaintiff’s and not the defendants’. See evidence, supra.

Tlfis language is no more than the law implies in all sales, and if the purchaser desires anything more than the law implies in every contract of sale he must specifically contract for it. Benjamin on Sales, 2d Ám. ed., § 600; Peck v. Armstrong, 38 Barb., 215; Reed v. Randall, 29 N. Y., 358-62; Gaylord Manufacturing Co. v. Allen, 53 id., 515; Dutchess Co. v. Harding, 49 id., 321; Gentilli v. Starace, 133 id., 140; 44 St. Rep., 60.

If one purchasing property without a warranty is satisfied that the property when received by him does not comply with the terms of sale, he must notify the vendor promptly and offer to return it, and if, after opportunity to ascertain any defects in the property, he does not promptly notify the vendor or offer to return it he will be deemed to have accepted the property. Reed v. Randall, 29 N. Y., 358-62-3; Delafield v. DeGrauw, 3 Keyes, 467; McCormick v. Sarson, 45 N. Y., 265; Gurney v. Atlantic & G. W. R. Co., 58 id., 358-64; Brown v. Foster, 108 id., 387; 13 St. Rep., 805; Fairbanks Co. v. Metzger, 118 N. Y., 260; 28 St. Rep., 775; Mason v. Smith, 130 N. Y., 474; 42 St. Rep., 365.

In this case, the defendants, after receiving the fruit, proceeded to exercise ownership over it by selling it. It is claimed that they gave notice to the plaintiff by the letter above set forth. The terms of the letter do not import a rejection or offer to return.

A complaining letter does not amount to a rejection or offer to return. Mason v. Smith, 130 N. Y., 480; 42 St. Rep., 365. But assuming it to have been intended as a notice of rejection, then it seems to me that it was not made in time. Such notice should be given promptly; and what would, perhaps, be considered a reasonable compliance with the rule' under some circumstances, would not under others.

Here the parties are dealing with a perishable article, fruit; the complaint is that it is over ripe; and yet the defendants say nothing in regard to it until they have had it five days; they receive it on the 14th, write the letter referred to on the 19th, which is received by the plaintiff on the 21st. This, Under the circumstances, was too long a delaj'-, and is very far from the promptness which the law requires from one seeking to disavow a purchase.

The question is presented as to whether this court has the power to grant a new trial. The case comes before us on an appeal from a judgment of the justice’s court, the appeal having been taken, in the first instance, from such court to the county court, and from the county court here. Appeals from justice’s courts are governed by articles 1, 2 and 3 of title 8, chapter 19 of the Code of Civil Procedure. Article 2 provides for appeals where a new trial is not had, and is not asked for, in the appellate court. Article 3 applies to appeals for a new trial in the appellate court.

.The appeal before us is one where a new trial is not asked for in the appellate court, and therefore comes under article 2. Section 3063 provides for the judgment which may be rendered on such appeal, it reads that “The appellate court must render judgment in accordance with the. justice of the case, without regard to technical errors or defects which do not affect the merits. It may affirm or reverse the judgment of. the justice in whole or in part, and as to any or all of the parties and for errors of law or of fact.”

This appears to me to be a limitation- upon the powers of the appellate court. The general term, it seems to me, has no more power in this respect than has the county court, to which appeals from justice’s judgments are taken in the first instance. If a county court upon appeal cannot grant a new trial, the general term, when a case comes to it from a county court, cannot do so.

Reliance is placed upon the case of Hathaway v. Fitchburg R. R. Co., 49 St. Rep., 466, as an authority that this court can grant a new trial. In that case no discussion of the question was had, as it was assumed without investigation that § 1317 of the Code authorized the court to grant a new trial, and that assumption was acquiesced in. Section 1317 is a part of chap. 12 of the Code of Civil Procedure, and applies to appeals taken from .courts of record, and it has been held has no application to appeals from the justices’ judgments. Ryan v. Parr, 40 St. Rep., 946; Bonnett v. Townsend, 43 id., 98.

It seems to me, therefore, that in the case of appeals that are not for a new trial from justice’s court judgments this court has no power to grant a new trial.

Let, therefore, the judgment herein be reversed, with costs.

Mayham, P. J., and Putítam, J., concur.  