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and 122 New York State Reporter we call the agreement as to the quality of the goods to be delivered by the name of “warranty" or by some other name. Nor is it safe to assume, even if the undertaking as to the quality of the goods be properly called a "warranty," that the general rule that a warranty survives acceptance applies to every undertaking or agreement which is properly and commonly designated as a “warranty.” The cases dealing with the rights and obligations flowing from warranties are innumerable, and if mere extracts from opinions be read, without careful regard to the facts dealt with, it may be found difficult to reconcile all of the decisions. There is, however, an underlying principle upon which rest both the rule that warranty survives acceptance and the apparent exceptions to the rule. That principle is that if it appears from the nature of the warranty, and the character of the property warranted, and the relations of the parties to each other and to the subject of the warranty, that it was intended that the vendee should rely upon the warranty, in accepting the goods, as an assurance that he is accepting what he contracted to buy, the warranty will survive acceptance, but if the warranty be that the goods are of a certain kind or quality, and a mere inspection will show whether or not they are of such kind or quality, and the vendee has full opportunity to inspect them, and does in fact inspect them, before acceptance, the reason for the survival of the warranty ceases, and it will not survive acceptance.

In Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63, there are expressions in the opinion which, taken alone, lend color to the contention that a warranty of quality always survives acceptance, even when full opportunity to inspect the goods precedes the acceptance. An examination of the facts shows, however, that it is authority for no such proposition. The goods sold were cloakings which had been sold by sample. The goods delivered were inferior to the samples, and if inspected before acceptance their inferiority would have been apparent. The warranty was not, however, a part of the contract of sale, but a collateral agreement, and before defendants received the goods the plaintiff had exhibited other samples, represented to be samples which came with the goods from the manufacturers, and which were equal in quality to the original samples. It is easy to see that it might well have been, and probably was, the intention of the parties tliat the defendants should accept the goods without inspection, in reliance upon the collateral warranty, and upon the exhibited samples shown as accurately representing the delivered goods.

In Parks v. Morris Ax & Tool Co., 54 N. Y. 586, cited and relied upon in Brigg v. Hilton, the subject of the sale was cast steel to be manufactured into axes, and the warranty was that it should "be equal in quality to Jessup's or other standard brands." Whether or not the steel would have been equal to the warranty could be determined only after the axes had been manufactured from it, and stress is laid upon the fact in the opinion, wherein it is said:

"Obviously, mere inspection could not determine whether the steel delirered was the best ax steel, and equal in quality to any English brand. In order, therefore, to any substantial protection of its riguts, the defendant was compelled to rely upon the warranty."

In Fairbank Canning Company v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753, the warranty was collateral to the contract of sale, and was to the effect that plaintiff would deliver to defendant beef froni cattle that had not been heated before being slaughtered. As was observed by the court, the warranty was of such a character "that defendants were obliged to rely solely upon the representation of the plaintiff in respect thereto. The plaintiff or its agents selected from their stock the cattle to be slaughtered. No one else knew or could know whether they were heated or feverish. Inspection immediately after placing the beef in the car would not determine it”—and for that reason it was held that the warranty necessarily survived the acceptance.

In Hooper v. Story, 155 N. Y. 171, 49 N. E. 773, the subject of sale was a varnishing machine, and the warranty was that it would turn out a certain quantity of work per day. Obviously, its capacity to turn out work could not be determined until it was tested, and it could not be tested until it had been accepted, and therefore, to make the warranty effective, it must survive acceptance.

There are to be found many authorities in this state for the proposition that, in the absence of fraud or latent defects, an acceptance of the article sold upon an executory contract, after an opportunity to examine it, is a consent and agreement that the quality is satisfactory and conformable to the contract, and bars all claim for compensation for any defects that may exist in the article. It was so held in Gaylord Mfg. Co. v. Allen, 53 N. Y. 515, wherein it was also held that it made no difference whether the warranty was express or implied. In Gurney v. Atlantic & G. W. Ry. Co., 58 N. Y. 358, the court recognized and declared the general rule that, when articles are sold upon an executory contract, the delivery and acceptance of the articles, after examination or an opportunity to examine them, is a consent and agreement that the articles correspond with the contract, and preclude a recovery for any defects which may exist; at the same time recognizing and applying the other equally well-settled rule that the vendee must have an opportunity to examine, and when, from the terms of the contract or the nature of the article, this can only be done by use, and such was therefore the mode of examination contemplated, the vendee is not foreclosed until the test is made. In Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 213, 5 L. R. A. 702, the authorities dealing with the rule now under discussion are exhaustively examined and reviewed, and the rule is restated as follows:

"An acceptance by the vendee of personal property manufactured under an executory contract of sale, after a full and fair opportunity of inspection, in the absence of fraud, estops him from thereafter raising an objection as to visible defects and imperfections, whether discovered or not, unless such delivery and acceptance is accompanied by some warranty of quality manifestly intended to survive acceptance.”

To the same effect is Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. 335.

The case now before us falls within the letter and reason of the rule established by the authorities last cited. The contract of sale

and 122 New York State Reporter was executory; the undertaking or warranty of quality, that the sausages should be "dry enough for export,” was one of the terms of the contract itself; the defect, if any existed, was patent and discoverable upon inspection; Willard, plaintiff's assignor, had full opportunity to examine them, and after such examination accepted them. It is clear that he did not rely upon the warranty in accepting. He may have relied upon his own judgment. He certainly relied upon the new agreement made by Davenport on behalf of defendants, but he did not rely upon the original warranty. His acceptance of and payment for the goods after examination, under the authorities above cited, estopped him from afterwards suing upon the warranty.

The second paper upon which plaintiff bases his right to a recovery is not, properly speaking, a warranty at all, but a contract of indemnity, which rests upon sufficient consideration. The plaintiff's assignor and defendants' agent differed as to the quality of the sausages, and especially as to whether the customer in France would accept them. Willard's waiver of his objection and acceptance of the goods furnished a sufficient consideration for the contract. Whether the agreement made by Davenport to induce plaintiff to accept the sausages be regarded as a contract of indemnity, or as an extension, to the extent indicated by it, of the original warranty, is not material, because the event against which defendants undertook to indemnity Willard never happened. That event was, “if claim is made for too much fat," defendants would make good-meaning, evidently, if a claim was made by Willard's customer in France. No such claim was ever made, because the goods never reached the customer. Why their entry into France was forbidden does not appear. It may have been for excessive fat, or for some other defect not covered by the warranty. At all events, the contingency against which defendants undertook to indemnify Willard did not arise. The plaintiff, therefore, showed no right under the agreement of April 22, 1899.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. All concur.

AEWSON V. INTERURBAN ST. RY, CO. (Supreme Court, Appellate Division, Second Department. June 10, 1904.) 1. STREET RAILWAYS-PERSONAL INJURIES-ASSAULT BY CONDUCTOR.

In an action against a street railway company for assault by a conductor on a boy trespassing on the cars, no request being made that the court should submit the question as to whether the conductor was acting within the scope of his employment, the question was not raised by defendant's motion for dismissal after the close of all evidence on the ground that, if plaintiff's claim was true, the conductor's act was willful and with

out the scope of his employment. 2. SAME-SCOPE OF EMPLOYMENT-EVIDENCE-SUFFICIENCY.

Testimony of a street car conductor that there was a rule making it his duty to prevent boys from catching on cars, and that his purpose in wbat he did was to remove the plaintiff from the car, was sufficient to justify

finding that his act in assaulting a boy who was on, or attempting to get ol', defendant's car, was within the scope of his employment.

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Appeal from Trial Term, Westchester County.

Action by Patrick Hewson against the Interurban Street Railway Company for personal injuries. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

Bayard H. Ames, for appellant.
P. J. Rooney, for respondent.

HIRSCHBERG, P. J. The plaintiff, a child of 13 at the time of the occurrence, was playing with other lads upon West street in the borough of Manhattan, on the afternoon of January 18, 1903. As he was running by the side of one of the defendant's cars, with his hand upon it, he claims that the conductor jumped off the car, and, without warning of any kind, struck him a violent blow upon the head, knocking him under the car, so that the wheels went over him and inflicted serious, permanent injuries. The conductor claimed that the boy was actually on the car, in a dangerous position, and that he went out and called upon him to get away; that the boy, seeing him coming, jumped off, and, in so doing, slipped upon the snow and slid underneath the car; and that he did not strike him. Each version of the occurrence was corroborated by other witnesses, and the verdict establishes the fact of the assault.

The only exception taken to the charge of the learned trial justice was addressed to the proposition that the case presented, “not the ordinary question of negligence, * * but a question of assault and battery-whether the conductor committed a battery upon the boy.” No request was made that the court should submit to the jury the question whether or not the conductor was acting at the time within the scope of his employment. The defendant did move at the close of the plaintiff's case and at the close of all the evidence for a dismissal of the complaint upon the ground, among others, that, if the plaintiff's claim is true, the act of the conductor was a willful act, and entirely without the scope of his employment, and that on that ground the defendant is not liable," but the denial of these motions does not raise the question suggested.

There seems to be no error in the statement that the action, upon the plaintiff's version of the occurrence, is for the assault. In Sanford v. Eighth Avenue Railroad Company, 23 N. Y. 343, 80 Am. Dec. 286, in reversing an order setting aside a judgment obtained for damiges occasioned by the death of the plaintiff's intestate, who was unlawfully upon a car, and was thrown from it by the conductor while it was in motion, the Court of Appeals said (page 346, 23 N. Y.):

"The decision of the court below appears to have proceeded upon a rule of law which we think is inapplicable to the case. In the opinion of that court, it is conceded that the conductor was guilty of negligence and improper con

luct in expelling the passenger without stopping the car. But the latter was also in the wrong in occupying a seat without paying the fare, and the case

was put as one of concurring negligence, where the injured party is without 1 redress because he is himself in fault. We fail to see how this principle can De invoked. It cannot be applied to an intentional trespass-certainly not to

88 N.Y.S.-52

and 122 New York State Reporter a case like the present. If the plaintiff's intestate had not died of his injuries, his action for the wrong would have been strictly and technically assault and battery. In such an action a plea that the plaintiff was guilty of concurring negligence or fault would have been without precedent, as well as illogical and absurd. To such a cause of suit the defendant must find and plead a complete justification of his conduct, or he must fail and pay the damages."

There was sufficient evidence to justify a finding that the act of the conductor was within the scope of his employment. He admitted that there was a rule making it his duty to prevent boys from catching on the cars, and that his purpose in what he did was to remove the plaintiff from the car. It is now well settled that the master is responsible for the act of his servant committed in the scope of the employment, even where he departs from his instructions, acts wrongfully, willfully, or illegally, and even where the act is committed upon a trespasser. Higgins v. Watervliet Turnpike Co., 46 N. Y. 23, 7 Am. Rep. 293; Rounds v. Del., Lack. & West. R. R. Co., 64 N. Y. 129, 21 Am. Rep. 597; Mott v. Consumers’ Ice Co., 73 N. Y. 543; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 25, 41 Am. Rep. 337; Lynch v. M. E. R. Co., 90 N. Y. 77, 43 Am. Rep. 141; Distier v. Long Island R. R. Co., 15 N. Y. 424, 45 N. E. 937, 35 L. R. A. 762; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289, 59 N. E. 921; Kenyon v. N. Y. Cen. & H. R. R. Co., 5 Hun, 479; Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605, affirmed in 113 N. Y. 670, 21 N. E. 1116; Lang v. N. Y., L. E. & W. R. R. Co., 51 Hun, 603, 4 N. Y. Supp. 565, affirmed in 123 N. Y. 656, 25 N. E. 955; Meisch v. Rochester Electric R. Co., 72 Hun, 604, 25 N. Y. Supp. 244; Lang v. N. Y., L. E. & W. R. R. Co., 80 Hun, 275, 30 N. Y. Supp. 13i; McKeon v. Steinway Ry. Co., 20 App. Div. 601, +7 N. Y. Supp. 374; Weitzman v. Nassau Electric R. R. Co., 33 App. Div. 585, 53 N. Y. Supp. 905; Hill v. Baltimore & New York R. Co., 75 App. Div. 325, 78 N. Y. Supp. 134.

No error is found in the other rulings made upon the trial to which exception was taken, and the verdict, although large, does not seem excessive. The judgment and order should be affirmed.

Judgment and order affirmed, with costs. All concur.

SCHWOERER V. CONNOLLY.

(Supreme Court, Appellate Term. June 13, 1904.) 1. LANDLORD AND TENANT-LEASE-CONSTRUCTION-RIGHT OF LANDLORD TO

TERMINATE TENANCY.

A lease for a term of years stated that it was "subject to the conditional limitations hereinafter stated,” and it was stipulated in the next paragraph that the occupation of the premises by the tenant and his family as a strictly private dwelling apartment was an especial consideration for the granting of the lease, and that the landlord expressly reserved the right to terminate the same on five days' written notice. Held, that the landlord's right to terminate the lease was dependent on a change in the character of the tenant's occupancy, and could not be arbitrarily exercised without such change,

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