Opinion
February 4, 1921.
Lawrence E. Brown of counsel [ Emilie M. Bullowa with him on the brief; Bullowa Bullowa, attorneys], for the appellants.
Arthur D. Fisher of counsel [ Campbell, Flaherty, Turner Strouse], for the respondent.
Present — CLARKE, P.J., DOWLING, SMITH, PAGE and GREENBAUM, JJ.
The action was brought to recover the purchase price of goods. The sale was by sample. One of the defenses alleges that plaintiffs specifically warranted and agreed that said merchandise would be of first class quality and merchantable and strictly in accordance with a sample, then exhibited, in weight, weave, quality and condition. The plaintiffs have asked for a bill of particulars requiring the defendant to state whether he relies upon a separate warranty or the implied warranty which attaches to a sale by sample, and if a separate warranty, the nature of that warranty. We think the plaintiffs are entitled to this relief. Furthermore, we think the plaintiffs are entitled to a bill of particulars showing in what respects the property delivered is claimed not to have conformed to the sample upon which it was sold or to any warranty made. It is no answer to this request that the seller knows what articles he has sold. He is entitled to know in what particulars it is claimed that the article was inferior to the sample upon which it was sold, in order that he may properly prepare his case. The order, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted.
Order reversed, with ten dollars costs and disbursements, and motion granted.