Section 96, subdivision 4 of the New York Personal Property Law reads: "In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose." It is plain that this subdivision renders completely insufficient the first claim of the amended third party complaint against Coston Supply Company and Oakite Company See, for example, Sure Seal Co. v. Loeber, 171 App. Div. 225, 157 N.Y.S. 327, 1st Dept., 1916; Ellen v. Heacock, 247 App. Div. 476, 286 N.Y.S. 740, 4th Dept., 1936. The third party plaintiff argues that subdivision 4 is limited by subdivision 1 of the same section which provides for an implied warranty of fitness where the buyer, expressly or otherwise, makes known to the seller the particular purpose for which the goods are required and the buyer relies on the seller's skill and judgment and by subdivision 2 which refers to goods bought by description.
But he may still insist that it must be of a quality which will pass in the market under that description, and he may rightly rely upon the seller to secure him such a quality." (See, also, Hargous v. Stone, 5 N.Y. 73; Howard v. Hoey, 23 Wend. 350; Reed v. Randall, 29 N.Y. 358; Sure Seal Company v. Loeber, 171 App. Div. 225; Gillespie Brothers Co., v. Cheney, Eggar Co. L.R. [1896] 2 Q.B. 59, 64.) We hold, therefore, that on the evidence before us the sale in this case carried with it an implied warranty of merchantability.