
    (24 Misc. Rep. 204.)
    LEVY v. AMERICAN WAX & PAPER MFG. CO.
    (Supreme Court, Appellate Term.
    July 1, 1898.)
    Sale—Warranty of Quality.
    In an action for goods sold and delivered, it appeared that they were sold under a series of orders, the first of which described them as “prime"’ Japan wax and the bill rendered by the plaintiff described them in same, terms. Each of the subsequent orders referred expressly to the previous one. It also appeared that the wax in question was grossly adulterated, and was not prime. Held, that the term employed constituted a warranty of the described quality, and that the defendant was entitled, under his counterclaim founded thereon, to recover such damages as he might be able to prove.
    Appeal from First district court.
    Action by Solomon Levy against the American Wax & Paper Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals.
    Reversed.
    Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.
    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 bUl 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. Railroad Co., 131 N. Y. 72, 29 N. E. 1006. 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 it might be able to prove under its counterclaim founded upon the warranty. As it 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.  