Opinion
May 2, 1955.
Action to recover as damages an unpaid balance of the purchase price of cleaning machinery, which balance was to be evidenced by notes to be given by the defendant, the purchaser, and to recover for work, labor and services. Defendant counterclaimed for the return of $2,700 paid on account of the purchase price, $200 paid, at plaintiff's request, to an employee of plaintiff, and for further damages. Plaintiff appeals from a judgment entered on the jury's verdict in favor of defendant on the counterclaim and dismissing the complaint. Judgment reversed on the law, with costs, and new trial granted. While the jury could find that the parties modified the original agreement to provide that appellant was obligated to deliver the cleaning machine and the tumbler only, and that respondent could rescind if there was a breach of warranty as to those articles, nevertheless it is undisputed that, long after discovery of the alleged breach, the respondent retained and used the articles after the refusal to accept their return, without promise of improvement in operation, or request or consent by appellant that respondent continue to use them on trial. Respondent's conduct constituted an acceptance of the articles. (Cf. Donovan v. Aeolian Co., 270 N.Y. 267.) The proof did not, therefore, warrant submitting to the jury the respondent's right to recover the payments made. Nolan, P.J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur.