
    The Regina Company, Respondent, v. Gately Furniture Company, Appellant.
    Third Department,
    March 8, 1916.
    Sale — action for goods sold and delivered — pleading — defense — ■ demurrer — breach of warranty —notice to seller — counterclaim.
    Where in an action for goods sold and delivered, the answer, after denying allegations of the complaint as to the sale and delivery of the goods, alleges as a defense that the defendant had heretofore entered into an agreement whereby the plaintiff agreed to sell and deliver to defendant certain goods at an agreed price and warranted and represented them to be free from defects; that pursuant to said agreement plaintiff delivered the goods but they were not as represented in said original agreement and were not free from defects, and there is no allegation of any failure to deliver the goods set outfin the complaint, or that there was any warranty as to such goods which has not been fulfilled, a demurrer to the alleged defense should be sustained, because the fact that the defendant may have had some other transaction with the plaintiff in which the latter failed to perform is immaterial.
    'The provision of section 130 of the Personal Property Law, that if after the acceptance of goods a buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time the seller shall not be liable therefor, is a condition precedent and must foe pleaded.
    Hence, a counterclaim for damages for breach of warranty and failure to deliver goods which fails to allege the service of notice as required by section 130 of the Personal Property Law is insufficient.
    Appeal by the defendant, Gately Furniture Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 16th day of August, 1915, upon the decision of the court rendered after a trial at the Broome Special. Term sustaining a demurrer to an alleged defense and counterclaim set up in the amended answer.
    
      
      Charles C. Annabel [James 0. Sebring with him on the brief], for the appellant.
    
      T. B. & L. M. Merchant, for the respondent.
   Woodward, J.:

The complaint alleges the incorporation of the plaintiff and defendant, and then sets forth that the defendant ordered from the plaintiff, on several dates, vacuum cleaners of different types, and that the said cleaners were shipped to the defendant, and were of certain agreed values; that these cleaners were received by the defendant, and that the latter agreed to pay for the same, but that no such payments had been made, and that the defendant was indebted for the aggregate of these shipments, amounting to $162.75. The answer admits the formal averments and then, “further answering plaintiff’s amended complaint, denies each and every allegation contained therein, except as hereinafter admitted, qualified or denied, ” and then, without making any admissions, qualifications or denials, the defendant, “further answering plaintiff’s amended complaint and for a defense thereto, alleges upon information and belief,” that “heretofore defendant had entered into an agreement with the plaintiff, wherein and whereby the plaintiff did agree to sell and deliver to defendant, certain goods, wares and merchandise at the agreed price of $162.75, and which goods the plaintiff warranted and represented to be of good and merchantable quality, free from any defects; that in pursuance of said agreement plaintiff did deliver certain goods, wares and merchandise to defendant, but that the certain goods, wares and merchandise so delivered were not as represented in said original agreement, and were not of a good and merchantable quality and free and clear from defects, but on the contrary were of an inferior quality and not the same as previous goods which had been sold and delivered to the said defendant heretofore by said plaintiff and as plaintiff represented them to be; that said goods were not delivered at the time agreed upon and in accordance with the terms of the said original agreement, which is referred to in the plaintiff’s complaint.”

The plaintiff demurred to this alleged defense on the ground that it is insufficient in law upon, the face thereof; and we think it must be conceded that the matter pleaded as' an affirmative defense is not such to the cause of action set forth in the complaint. The fact that the defendant may have had some other transaction with the plaintiff, in which the plaintiff failed to perform, is of no consequence; the question is whether the plaintiff sold and delivered certain specified goods to the defendant which the latter has received and retained and refuses to pay for. This is the issue presented by the denials of the answer, and the new matter does not in any sense show that the plaintiff is not entitled to recover upon the cause of action set forth in the complaint.- It is not alleged that there was any failure to deliver the goods set out in the complaint, or that there was any warranty as to such goods which had not been fulfilled, and in the absence of such allegations no defense is presented. It is the purpose of pleadings to indicate the issues to be tried, and the alleged affirmative defense herein presented does not present such an issue, and, if it were established, it would not defeat this action. The issue presented is raised by the denials, not by the affirmative matter, and the court properly sustained the demurrer as to this feature of the answer.

The defendant then attempts to set up a counterclaim by alleging the incorporation of the defendant and plaintiff and that “ heretofore and at divers times between the 7th day of May and the first day of October, 1914, the plaintiff herein entered into an agreement to and with the aforesaid defendant, wherein and whereby the plaintiff did agree to sell and deliver to the defendant at its various places of business and at its store in Elmira, Chemung county, FT. Y., and at Binghamton, Broome county, N. Y., various vacuum sweepers of the value and agreed price of $162.75, to which the defendant agreed; that said plaintiff at said time did warrant and represent the said goods so sold to be of good and merchantable quality and free from all defects, which goods were sold by the plaintiff to defendant by sample and from representations made by the plaintiff to defendant; that the said goods consisted of sweepers, etc., which were not as warranted and represented and not free from defects and were not of the same quality and condition and style as other sweepers previously sold by the plaintiff to defendant, which the said plaintiff represented to be of the same kind, condition and quality; that the said goods were not delivered within a reasonable length of time in accordance with the original agreement made between plaintiff and defendant; ” and that “by reason of the failure of the plaintiff to deliver the goods promptly as agreed upon aforesaid, that by reason of the inferior quality, which condition could not be disclosed by reasonable inspection and by reason of default and negligence of the plaintiff to sell and deliver the aforesaid goods according to previous samples, plaintiff has been damaged in the sum of $50.00.”

,/ty'o this alleged counterclaim the plaintiff demurred on the grounds: “ 1. That said counterclaim is insufficient in law upon the face thereof. 2. That the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure. 3. That the counterclaim does not state facts sufficient to constitute a cause of action; ” and the learned court at Special Term has sustained the demurrer. There is no allegation of any express warranty, but as the plaintiff was a dealer in the kind of goods being sold, there was, of course, an implied warranty that the goods should be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 97, as added by Laws of 1911, chap. 571.) At common law an express warranty survives acceptance, but an implied warranty does not. (Ferguson v. Netter, 204 17. Y. 505, 510.) Section 130 of the Personal Property Law (as added by Laws of 1911, chap. 571) has, however, extended the rights of purchasers, and it is there provided that “in the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale.” This places the warranty, whether express or implied, upon the-same foundation, but as a condition of this change it is provided, in the same section, that “if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.” Obviously the buyer takes this additional right to the survival of a warranty, expressed or implied, upon the condition that he shall give notice of a breach of the warranty within a reasonable time. Such notice is, therefore, a condition precedent, and this he is obliged to plead. There is nothing said in the alleged counterclaim of any notice having been given to the seller of any alleged breach of warranty, and in the absence of such an allegation there is a failure to state the facts necessary to constitute a counterclaim. (Buffalo Wholesale Hardware Co. v. Hodgeboom, 90 Misc. Rep. 53, 55, and authority there cited; Marx v. Locomobile Co. of America, 82 id. 468.)

The interlocutory judgment appealed from should be affirmed.

Interlocutory judgment unanimously affirmed, with costs.  