
    (November 16, 1961)
    Central Rigging and Contracting Corp., Respondent, v. United States Hoffman Machinery Corporation, Appellant.
   A question of fact is presented whether, under all of the circumstances, the reference in the agreement to the weight of the equipment as given in the annexed drawing amounted to a positive and material representation by defendant (rather than merely a convenient quotation of the assertion by the equipment manufacturer to be taken at the bidder’s risk) of the true weight, upon which plaintiff had a right to rely (see Hollerbach v. United States, 233 U. S. 165). In this connection it may be relevant to determine whether plaintiff and defendant had equal opportunity to discover the actual weight of the equipment by independent investigation (Faber v. City of New York, 222 N. Y. 255, 260; United States v. Stage Co., 199 U. S. 414, 424). Such does not clearly appear in the record, and it may not be presumed that the weights were peculiarly within defendant’s knowledge. Concur — Breitel, J. P., McNally, Stevens, Eager and Steuer, JJ.  