The action was brought to recover the sum of about $800, a balance due on the sale by the plaintiff to the defendant of certain Norton elevator door checks and closers.
The answer set up a breach of warranty that the appliances were fit and proper for the purposes intended. The answer further set up a counterclaim based mainly on a breach of warranty. The reply did not deny that there was such a warranty; therefore, it stood admitted.
The trial court directed a verdict in favor of the plaintiff and dismissed the counterclaim. That determination has been unanimously affirmed at the Appellate Division.
On the trial evidence which tended to show that the *Page 39 articles furnished were not fit and proper for the purposes intended was excluded.
It is plain that with the warranty admitted by the pleadings the defendant could show a breach of the warranty. Therefore, there was error in the court's ruling which led to the dismissal of the defendant's counterclaim and to the direction of a verdict against him for the full amount of the plaintiff's demand.
We are constrained to reverse the judgment appealed from.
The judgment should be reversed and a new trial granted, costs to abide the event.
HISCOCK, Ch. J., COLLIN, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.
Judgment reversed, etc.