Opinion
April 13, 1959
Present — Nolan, P.J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ.
In an action to recover a balance due on the sale and delivery of two 115,000-gallon fuel tanks a counterclaim was interposed to recover damages for breach of warranty. It is agreed that the contract of the parties required the purchaser to furnish the foundation for the tanks. The tanks buckled when, prior to the installation of saddles or other external bracing, they were subjected to the hydrostatic pressure tests prescribed by the Administrative Code of the City of New York. The appeal is from a judgment entered after trial before the court without a jury in favor of respondent and dismissing appellant's counterclaim. Judgment unanimously affirmed, with costs. No opinion.