
    McCARTHY v. ELLERS.
    (Supreme Court, Appellate Division, Second Department.
    July 27, 1905.)
    1. Sales—Breach of Warranty—Recovery Without Rescission—Damages.
    A buyer of a horse, carriage, and equipments for a lump sum under a contract of warranty of the horse cannot recover the amount paid on the death of the horse, shortly after the sale, from a disease with which it was afflicted at the time of the sale, without having offered to return the carriage and equipments, but can only recover the difference in the value of.the articles with the horse as warranted and with the horse as it actually was.
    
      2. Same—Suit by Buyer to Recover Price Paid—Return op Articles Bought.
    Where a buyer of a horse, carriage, and equipments for a lump sum, under a contract of warranty of the horse, sued to recover the price paid on the death of the horse from a disease from which it suffered at the time of the sale, without having offered to return the other articles, the court could not render judgment for the price, and order the buyer to return the carriage and equipments to the seller, as the rescission by the buyer must be voluntary.
    Appeal from Municipal Court of New York.
    Action by Patrick McCarthy against George E. Ellers. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before HIRSCHBERG, P. J., and BARTLETT, RICH, and MILLER, JJ.
    Mitchell May, for appellant.
    Walter W, Bahan, for respondent.
   HIRSCHBERG, P. J.

The judgment cannot be sustained. The pleadings were oral, the plaintiff complaining “for return of. money on guarantee on sale of a horse.” The proof established that the plaintiff had purchased from the defendant, for the lump sum of $175, a horse, carriage, and equipments, including harness, and that the sale was made upon the defendant’s express warranty that the horse was sound. The horse was afflicted at the time with "chronic heaves, and died from the effects of the disease shortly after the sale. The judgment awards to the plaintiff the sum of $175 damages. The plaintiff retained possession of the carriage, harness, and equipments, and never returned or offered to return them to the defendant after the horse died. The plaintiff could doubtless have rescinded the contract on the discovery of the breach of warranty, and could have returned or have offered to return the property, suing for a return of the entire purchase price; but he could not recover that price while he retained a substantial portion of the property purchased by him. If the action is to be regarded as one for the damages sustained by the plaintiff because of the breach of warranty, the recovery could not be for the purchase price as such, but must be limited to the difference in the value of the articles with the horse as warranted and with the horse as he actually was, of which there was no proof. The cases cited by. the learned counsel for the respondent (Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Norton v. Dreyfuss, 106 N. Y. 90, 12 N. E. 428; and Argersinger v. Macnaughton, 114 N. Y. 535, 21 N. E. 1022, 11 Am. St. Rep. 687) undoubtedly sustain his contention that the purchaser may. sue the vendor upon the breach of an express warranty which survives acceptance without returning the purchased property, but the remedy in those cases is upon the warranty for the damages incurred, and not by way of rescission for a return of the price paid. But the purchaser cannot in the same action sustain a claim of a return of the goods and rescission of the contract, and also for damages for breach of the warranty. See headnote Norton v. Dreyfuss, supra, page 91 of 106 N. Y., page 429 of 12 N. E. It appears by the return that the court in rendering judgment “ordered that the carriage and harness in possession of plaintiff be returned to defendant.” This was irregular and ineffective. The return must be the plaintiff’s voluntary act if he elect to rescind, and if he elect to retain a portion of the property (assuming but without deciding that he may lawfully do so) the action must be confined to a claim for the damages.

The judgment should be reversed, and a new'trial ordered. All concur.  