
    BILLSON v. HALL & GRANT CONST. CO.
    (Supreme Court, Appellate Term.
    May 5, 1904.)
    1. Sales—'Warranty—Breach—Survival oe Acceptance—Oeeer to Return.
    Where a warranty attends an executed present sale, the right to damages for breach of the warranty survives the acceptance of the thing sold, and an offer to return on account of the breach is neither necessary nor permissible.
    Appeal from City Court of New York, Trial Term.
    Action by Charles J. Billson against the Hall & Grant Construction Company. From a judgment for plaintiff, defendant appeals. Reversed.
    Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.
    John Larkin (Alexander S. Andrews, of counsel), for appellant.
    Charles Lex Brooke, for respondent.
   LEVENTRITT, J.

The action was for the unpaid balance of the purchase price .of certain electric machinery. The defense was breach of an express warranty, the plaintiff having warranted in writing that the engine was a 90 kilowatt engine. The defendant claimed that it had a power of only 50 kilowatts. At the conclusion of the evidence both sides moved for a direction, and thereupon the court directed a verdict in favor of the plaintiff. No reasons were stated, and it is quite likely, from an erroneous ruling as to important evidence, that the court may have been improperly influenced, and decided the issues on an erroneous theory. The president of the defendant was asked on cross-examination,. “You never offered to return this machine to the plaintiff, did you?” Objection was made on the ground of immateriality and irrelevancy. The objection was overruled, an exception taken, and the witness answered, “No, sir.” This testimony should have been excluded. The warranty as to quality in this case attended an executed present sale of the machine, and an offer to return was neither necessary nor allowable on account of the breach of warranty. The right to damages survived acceptance. The acceptance is qualified by the warranty, and is to be construed in reference to it. Rust v. Eckler, 41 N. Y. 488; Nichols v. Townsend, 7 Hun, 375. Having admitted it, thus deeming it material, we cannot say but that the court directed the verdict on the theory that the defendant had not offered to return the. machine after discovery of the breach.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  