Opinion
November 16, 1961
Order entered on June 16, 1961, granting plaintiff's motion for summary judgment and denying defendant's cross motion for the same relief in its favor, in this action for misrepresentation and breach of warranty in a rigging contract, unanimously modified on the law to the extent of denying plaintiff's motion and the order is otherwise affirmed, without costs. A question of fact is presented whether, under all of the circumstances, the reference in the agreement to the weight of the equipment as given in the annexed drawing amounted to a positive and material representation by defendant (rather than merely a convenient quotation of the assertion by the equipment manufacturer to be taken at the bidder's risk) of the true weight, upon which plaintiff had a right to rely (see Hollerbach v. United States, 233 U.S. 165). In this connection it may be relevant to determine whether plaintiff and defendant had equal opportunity to discover the actual weight of the equipment by independent investigation ( Faber v. City of New York, 222 N.Y. 255, 260; United States v. Stage Co., 199 U.S. 414, 424). Such does not clearly appear in the record, and it may not be presumed that the weights were peculiarly within defendant's knowledge.
Concur — Breitel, J.P., McNally, Stevens, Eager and Steuer, JJ.