Opinion
April 22, 1965
Appeal from the Civil Court of the City of New York, County of New York, SAUL PRICE, J.
Donovan Leisure Newton Irvine ( Robert F. Morten and Peter W. Mitchell of counsel), for appellant.
Norman D. Fiedler for respondent.
Where an offer explicitly states that the goods offered for sale are offered on an "as is" basis, that all warranties are excluded, and that no modifications to the contract may be effected save by specified officers of the vendor, the exhibition of one of the items by an employee of the vendor, accompanied by said employee's oral statement that the remainder of the goods corresponds to the "sample" exhibited, does not suffice to change the character of the sale from one with all warranties excluded, to a sale by sample. ( American Elastics v. United States, 187 F.2d 109, cert. den., 342 U.S. 829.) The enforcibility of a clause containing a waiver of warranties is clear. ( Freemantle v. United States Hoffman Mach. Corp., 2 A.D.2d 634, 635.) Accordingly, defendant's motion to dismiss the complaint on the basis of its defense founded on documentary evidence, should have been granted.
The order should be reversed, with $10 costs, and defendant's motion for judgment dismissing the complaint granted.
Concur — TILZER, J.P., GOLD and CAPOZZOLI, JJ.
Order reversed, etc.