
    Louis B. Wasserstrom, Appellant, v. Cohen, Frank & Company, Respondent.
    First Department,
    December 18, 1914.
    Sales—implied warranty under subdivision 1 of section 96 of the Personal Property Law — when defense of implied warranty not established.
    In order to establish an implied warranty under subdivision 1 of section 96 of the Personal Property Law, providing that “Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required and it appears that the buyer relies on the seller’s skill and judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose,” it must appear not only that the seller was informed expressly or by implication of the purpose for which the goods were purchased, but also that the buyer relied on the seller’s skill and judgment.
    Where in an action by a jobber to recover for leather sold through his agent to the defendant, a shoe manufacturer, it appears that the seller knew that the leather was purchased to be made up into shoes, but there is no allegation in the answer or evidence and no implication arising from the circumstances or relations of the parties that the defendant relied on the skill and knowledge of the plaintiff’s salesman, there is a failure to establish an implied warranty under the statute.
    Appeal by the plaintiff, Louis B. Wasserstrom, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of April, 1914, affirming a judgment of the Municipal Court of the City of NewYork, borough of Manhattan, first district, and also affirming the order of the Municipal Court denying the plaintiff’s motion for a new trial.
    
      Franklin Taylor and Joseph J. Zeiger, for the appellant.
    
      Israel H. Perskin, for the respondent.
   Scott, J.:

The plaintiff appeals from the affirmance of a judgment in his favor, his grievance being that the trial court allowed a counterclaim in behalf of defendant.

Although the action originated in the Municipal Court, the pleadings were written. The complaint was for goods sold and delivered for which there was claimed to be due $334.04. The defense consisted of a counterclaim for a breach of warranty, the allegations being such as would be applicable to a case of an express warranty. It was made quite clear from the facts developed upon the trial that there had been no express warranty of quality such as was alleged in the answer, and the defendant has been forced to fall back upon a claim of an implied warranty under the terms of a statute to be presently quoted.

The plaintiff is what is known as a jobber in leather, that is, a merchant buying and selling leather in job lots, and being neither a manufacturer nor an importer. The defendant is a shoe manufacturer. The subject of the sale was a quantity of patent leather. It was, as the event proved, defective in quality and unfitted for the purpose to which defendant, to plaintiff’s knowledge, intended to put it.

Defendant was a large consumer of patent leather, buying and using about 1,000 feet a week. Its vice-president, who made the purchase in question, had been engaged in the business for many years and had bought large quantities of patent leather. Plaintiff’s salesman who effected the sale, for him had been engaged a much less number of years in the business of dealing in such leathers. The defects in the leather were not apparent on mere inspection. The only evidence of an express warranty is to the effect that defendant’s buyer asked the salesman: “Is it good leather?” to which the salesman replied: “I am selling it to the best house in the city.” Clearly this was no warranty, and the defendant does not seriously contend that it was.

Defendant’s reliance is upon subdivision 1 of section 96 of the Personal Property Law, which went into effect on September 1, 1911. (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], § 96, subd. 1, as added by Laws of 1911, chap. 571.) That subdivision, as enacted by the statute last mentioned, reads as follows: “Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill and judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. ”

This amendment reverses the rule which formerly obtained in this State which recognized implied warranties of fitness upon sales by manufacturers, but not against mere dealers, and brings our law into harmony with that prevailing in England and in many of the States in this country. (See 15 Am. & Eng. Ency. of Law [2d ed.], 1235, 1236, and cases cited.) It will be observed that in order to bring a case within the purview of the act two things must appear: First. That the seller must be informed, expressly or by implication of the purpose for which the goods are purchased, and, second, the buyer must appear to have relied on the seller’s skill and judgment.

As to the first requirement it sufficiently appears in the present case that the seller knew the purpose for which the leather was purchased, to wit, to be made up into shoes. But there is no allegation in the answer, and no evidence, and no implication arising from the circumstances and the relation of the parties, that defendant relied on the skill and knowledge of plaintiff’s salesman. So far as skill, knowledge and experience were concerned the parties stood at the very least upon an equality, if indeed defendant’s purchaser had not much wider experience and knowledge than plaintiff’s salesman. In this regard the case is much like Hight v. Bacon (126 Mass. 10), wherein, under very similar circumstances in a jurisdiction in which the rule of our statute prevails, it was held that no implied warranty could be found.

The case was tried in the Municipal Court without a jury and no other question is presented except that herein discussed. As to that there is no disputed question of fact. There would be no useful purpose to be served, therefore, by sending the case back for retrial. The determination of the Appellate Term and the judgment appealed from will, therefore, be so modified as to award to plaintiff the amount demanded in the complaint with interest, with costs to plaintiff, appellant, in all courts.

Clarke, McLaughlin, Laughlin and Dowling, JJ., concurred.

Determination and judgment modified as stated in opinion and as modified affirmed, with costs to plaintiff, appellant, in all courts. Order to be' settled on notice.  