
    Henry Knabe, Respondent, v. The Flameless Gas Stove Co., Appellant.
    (Supreme Court, Appellate Term,
    January, 1897.)
    Sale — Evidence — Failure to correspond to order.
    The fact that the goods delivered differed in composition from the ones ordered cannot be shown under a general denial. If such was the fact the vendee should rescind and return the goods or recoup damages for breach of warranty.
    Appeal by defendant from judgment of the Second District Court.
    Adam E. Schatz, for appellant.
    Hiram Ketchumj for respondent.
   McAdam, J.

The action is by the plaintiff, as assignee of the firm of James Gallagher & Sons, to recover a balance due for twelve bronze castings and 159 aluminum bronze castings, manufactured and delivered to the defendant. The answer is a genéral denial.

The president of the defendant gave á verbal order to the plain-, tiff’s assignors for twelve composition bronze castings, and produced a pattern of the kind he wanted. They were manufactured and proved satisfactory. Thereafter a second order was given for the castings in suit, to be made of the same materials as those furnished on the first order, except that there should be. added four per cent, of, aluminum to prevent tarnish. These were delivered to and accepted by the defendant. Pierson v. Crooks, 115 N. Y. 539.

The defense was that the castings furnished on the second order were useless because their composition, irrespective of the alnminum added, was different from that of the first castings, and, therefore, they did not comply with the contract. The defendant undertook to prove the difference of composition by a government metallurgist, and the exclusion of a question to him on that point is assigned as error. .

The ruling, was right. Lf the,defendant intended to rely upon rescission it ought to have returned the castings. Story on. Sales, .§ 426; La Folette v. Noble, 13 Misc. Rep. 574; Hallahan v. Webber, 7 App. Div. 122. If it did not so intend, it ought to have treated the contract as oné containing a warranty, and recouped as damages the difference between the actual value of the articles delivered, with all their defects, and what they would have been worth if they had conformed to the warranty. Story on Sales, § 454; 1 Sedg. on Dam. (7th ed.) 606; Bach v. Levy, 101 N. Y. 511; Bayl. Code Pl. 275, 276, and cases cited. It did not adopt either course, and is not in a position to complain of the ruling made.

Judgment affirmed, with costs.

Daly, P. J., and Bischoee, J., concur.

Judgment affirmed, with costs.  