
    Charles J. Billson, Respondent, v. The Hall & Grant Construction Co., Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Sale — On an executed present sale of an article, with a warranty as to quality, the vendee need not and cannot return the article for a breach of the warranty — When the admission, in the vendor’s action for the price, of proof, that no offer to return had been made by the vendee, is erroneous.
    On an executed present sale of a machine, with a written warranty as to power, it is neither necessary nor permissible for the vendee to return the machine on account of a breach of the warranty.
    The right to damages for the breach survives acceptance and acceptance is qualified by the warranty and is to be construed in reference to it.
    Where the vendor sues for an unpaid balance of the price and the vendee sets up the breach of warranty and claims damages for it, it is erroneous for the trial justice to permit the vendor to prove by the vendee, on cross-examination, that the vendee never offered to return the machine as, in view of the admission of the evidence which would not have been admitted unless considered by the court as material, the appellate court cannot say that the verdict for the vendor, directed by the trial justice, was not directed by him upon the theory that the vendee had not offered to return the machine after he discovered the breach of the warranty.
    Appeal by the defendant from a judgment entered upon a verdict directed in favor of the plaintiff, in the City Court of the city of Hew York.
    John Larkin (Alexander S. Andrews, of counsel), for appellant.
    Charles Lex Brooke, for respondent.
   Levemtritt, J.

The action was for the unpaid balance of the purchase price of certain electric machinery. The defense was breach of an express warranty, the plaintiff having warranted in writing that the engine was a ninety kilowatt engine. The defendant claimed that it had a power of only fifty kilowatts. At the conclusion of the evidence, both sides moved for a direction and thereupon the court directed a verdict in favor of the plaintiff. Ho reasons were stated and it is quite likely, from an erroneous ruling as to important evidence, that the court may have been improperly-influenced and decided the issues on an erroneous theory.

The president of the defendant was asked on cross-examination : “ You never .offered to return this machine to the plaintiff, did you?” Objection was made on the ground of immateriality and irrelevancy. The objection was overruled, an exception taken and the witness answered: “Ho, sir.” This testimony should have been excluded. The warranty as to quality, in this case, attended an executed present sale of the machine, and an offer to return was neither necessary nor allowable on account of the breach of warranty. The right to damages survived acceptance. The acceptance is qualified by the warranty and is to be construed in reference to it. Rust v. Eckler, 41 N. Y. 488; Nichols v. Townsend, 7 Hun, 375. Having admitted it, thus deeming it material, we cannot say but that the court directed the verdict on the theory that the defendant had not offered to return the machine after discovery of the breach.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Ekeedmait, P. J., and Greeitbaum, J., concur.

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