
    The Stinesville & Bloomington Stone Co., Respondent, v. George W. White, Appellant.
    (City Court of New York, General Term,
    October, 1897.)
    Warranty — When it survives acceptance — Counterclaim.
    A warranty, made by a vendor corporation, that stone to be shipped to a vendee should be of the best quality, in first-class. condition, thoroughly “ scabbled ” and that it should not weigh more than, 160 pounds to the cubic foot, is one which survives an acceptance of the stone and entitles the vendee to interpose, in an action brought by the vendor for the value, a counterclaim arising out of the damages sustained by the vendee from the breach of the warranty.
    Appeal from a judgment in favor of- plaintiff.
    Parsons, Shepard & Ogden, for appellant.
    Jacob Fromme, for respondent.
   Per Curiam.

The plaintiff sold and delivered stone to the defendant. This action was brought to recover the agreed upon; value of the same. The defendant pleaded among other things that the plaintiff warranted and agreed that the stone to be shipped to him .under such agreement should be the best quality stone and in first-class condition and thoroughly scabbled, and that it should not weigh more than 160 pounds to- the cubic foot. That the stone shipped was worthless, and a large portion was not scabbled and' weighed on an average 175 pounds to the cubic foot, and thereby damage was done to the defendant.

The warranty alleged by the defendant in our opinion survived the acceptance by him of the stone, and any damage done him "by reason of its violation was a proper counterclaim against the plaintiff’s cause of action.

Upon the trial the defendant attempted to introduce evidence tending to sustain his counterclaim and prove his damage, and such evidence was excluded by the trial judge, and his ruling in that respect was error, and entitled defendant to a new trial.

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

Present: Fitzsimons and Conlan, JJ.

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