
    Solomon Levy, Respondent, v. The American Wax & Paper Manufacturing Co., Appellant.
    (Supreme Court, Appellate Term,
    July, 1898.)
    Warranty — Counterclaim.
    Where an order for Japan wax describes the goods as prime, and the bill therefor of the vendor so describes them, there is a warranty that the goods sold were of that quality; the warranty attaches to subsequent similar orders and entitles the vendee to interpose, to an action for the price, a counterclaim for an adulteration.
    Appeal from a judgment rendered in the Municipal Oourt of the city of New York, borough of Manhattan, first district, in favor of the plaintiff.
    William Victor Goldberg, for appellant.
    Samuel Greenbaum, for respondent.
   Per Curiam.

The .order first given to the plaintiff for Japan wax described the article as “ prime,” and the bill rendered by the plaintiff therefor described it in similar terms.' We think that this •constituted a warranty that the goods sold were of that quality. Zabriskie v. C. V. R. R. Co., 131 N. Y. 72. As all of the subsequent orders given referred expressly to the previous one, the warranty extended also to the goods thus sold. It. appears that the wax in question was grossly adulterated, and was not prime Japan wax. The defendant was, therefore, entitled to recover such damages as he might be able to prove under his counterclaim founded upon the warranty. As he was not permitted to do so, the judgment must be reversed.

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

Present: Beekman, P. J., Gildersleeve and Giegerich, JJ.

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