Opinion
Submitted April 7, 1924
Decided April 15, 1924
Caruthers Ewing for appellant. Gerard B. Rosenheim, Eugene E. Sperry and Walter D. Yankauer for respondent.
Because of the vague, confused and repetitious statements in which the defendant has chosen to veil its meaning it has been difficult for us to determine whether the answer in this case alleges new matter constituting an entire or a partial defense. What appears most clearly is that it is far from being a model of the legislative ideal, "a plain and concise statement of the material facts without unnecessary repetition."
Giving to the answer, however, a liberal construction, drawing from it what inferences we may, referring to the defendant's bill of particulars, we have concluded that the so-called first defense does plead a partial defense under sections 96, subdivision 1, 128 and 150, subdivision c, of the Personal Property Law. (Cons. Laws, ch. 41.) We further conclude that the first counterclaim is not inconsistent with this defense and is sufficiently pleaded.
As this contract contemplated a delivery of the goods in installments if there was an implied warranty that the goods should be dyed in fast colors, if upon inspection made within a reasonable time it was discovered that this warranty was broken, the buyer might refuse to receive such installments, tender them back to the seller and recover damages for the breach of warranty with regard to such installments as were not returned.
It is true that there was no express statement that the pleading constituted a partial defense but this objection seems not to have been taken or considered.
The judgment appealed from should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., CARDOZO, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; POUND, J., absent.
Judgments reversed, etc.