In this action to recover a balance alleged to be due for the sale and delivery of a quantity of paper, *237the defendant counterclaimed for a breach of warranty upon two lots of paper, used without rejection or offer to return, and on which payment had been made in full for one, and in part for the other. Premising the acceptation of the evidence warranting the findings of fact involved in the determination in favor of the plaintiff, which we will not disturb, and there being no evidence that the two lots of paper were billed or invoiced as of certain weight and size, the plaintiff may not be said, by the mere delivery of the paper in response to the orders, to have made an express warranty of the weight, quantity and size of the paper. Dounce v. Dow, 64 N. Y. 411. Even though the defendant informed the plaintiff that the paper was wanted for making seed-bags, it may not be implied from that and the mention of weight, without exaction of a promise as to fitness for that purpose, that the plaintiff warranted the paper fit for the purpose indicated, or any other. No collateral agreement being shown, the defendant must be held on the case as presented here to have accepted the paper as complying with the terms of the purchase and sale.
Gtldersleeve and Bischofe, JJ., concur.
Judgment affirmed with costs.