Memorandum by the Court. On a review of the whole evidence in a case in which close issues of fact were presented depending upon the credibility of witnesses, we think we should not say that the jury’s verdict in defendant’s favor is against the weight of the evidence or that there is any other basis for setting the verdict aside. The testimony offered by the defendant-seller included testimony by experts that the goods involved (the refinished goods), were fit for the purposes for which they were made, i.e., cutting by machine for manufacturing blouses. This plus the other evidence in the ease would make the issue of breach of warranty entirely a question for the jury, and under the circumstances, we should not disturb the verdict in defendant’s favor.
The judgment appealed from should be affirmed, with costs to defendant-respondent.
Cohn, J.(dissenting). When this ease was here in June, 1953 (282 App. Div. 123), this court in reversing a nonsuit in favor of defendant summarized the testimony as follows (p. 124): “Defendant, upon éxamination of the goods, apparently conceded the defective condition, and told plaintiff to return them to the finisher. It agreed to send a sample of the goods after refinishing for the purpose of examination by plaintiff. Such a sample was sent, and plaintiff again complained of similar defects in the goods. The defendant once more agreed to refinish them, and promised to send a second sample of .the goods after the second finishing. On receipt of this second sample plaintiff complained that examination disclosed that the tendency to curl had not been removed, and that the goods were still defective. Defendant refused further consideration of plaintiff’s claims and reshipped the bulk of the goods to plaintiff, but plaintiff refused to accept the same.”
The court also said (pp. 124r-125): “ The evidence disclosed that the second sample sent to plaintiff was for the purpose of showing the condition of the bulk of the goods after the second refinishing. In fact, defendant in its answer admitted that it had caused all of the goods to be refinished in accordance with the second sample. We think that this admission, plus proof of the condition of the second sample, if it showed unfitness for the buyer’s purpose, established a prima facie ease.”
From the evidence adduced upon this trial, it again appears that although plaintiff paid $7,654.50 for goods delivered to it by defendant, such goods were unsatisfactory and unsuitable for the purpose for which they were to be used, that is: to manufacture blouses. Plaintiff was then entitled to a return of the payment made for the goods. Thereafter defendant agreed to finish another piece of goods and submit a sample for plaintiff’s approval. The first sample *955of refinished goods was again found unsatisfactory by plaintiff. Defendant then sent a second sample. Concededly, this sample was never approved by plaintiff for it found such sample equally unsatisfactory and so advised defendant. Upon being informed that the second sample was unsatisfactory defendant’s president agreed to contact plaintiff concerning it. Without any further negotiations, however, defendant’s president ordered the firm’s dyers to finish and ship the bulk of the goods. He did not at any time inspect the second sample as he had agreed he would.
It was incumbent on defendant to furnish satisfactory proof that the second sample did not in fact curl; that it was usable for the purpose ordered; that, absent plaintiff’s approval of the second sample, it had notified plaintiff that such refinished goods were tested and found similar to the second sample and that they were suitable for manufacture of blouses. All this defendant failed to do. In the circumstances, plaintiff was justified in refusing to accept the goods when delivered a second time. The trial judge, who quite properly declined to discharge the jury when it first reported that there could be no agreement, expressed vehement disapproval with the jury’s verdict as finally rendered, but declined to interfere with it.
The verdict is contrary to the weight of the credible evidence, and should be set aside, and a new trial ordered.