This action is brought to recover the purchase price of a considerable quantity of silk thread on spools. The parties entered into a written contract covering the transaction. The answer alleges that the sale was by sample (although the written *341agreement makes no reference thereto), and that the silk delivered was inferior to the sample. It contains the further separate allegation “ that the silk so delivered was on spools and the defects in the same could not be discovered until the spools had been unwound in the ordinary course of manufacture, and after such thread had been worked into the broad silk together with the raw silk, said defects being latent,” and further allegations concerning the defective quality of the silk delivered which was discovered after the product had been finished, with a counterclaim based upon the resultant damage.
The contract contains the following clause: “ To guard against dissatisfaction owing to uneven twist or other causes, all shipments to be tested by customer, and if unsatisfactory reject within fifteen days.”
Passing a number of questions concerning a stipulation entered into by the parties and its effect upon this motion, which we think should all be resolved in favor of the defendant, appellant, we reach the substantial question involved on this appeal, namely, whether the defendant, appellant, is deprived of its counterclaim by the language of the contract quoted because the shipment was not “ tested and rejected within fifteen days.” Assuming that plaintiff, respondent, is correct in its contention that a sale by sample cannot be proved by defendant, appellant, under the circumstances disclosed because the attempt to do so would involve a violation of the parol evidence rule (see American Aniline Products, Inc., v. Mitsui & Co., Ltd., 190 App. Div. 485), we are nevertheless of opinion that the answer sufficiently presents a case under section 96 of the Personal Property Law where the buyer is entitled to rely upon an implied warranty. In that view of the case we do not believe that the language of the. contract quoted must be construed as precluding any claim for breach of warranty in respect of defects which, according to the allegations of the answer, could not be discovered except in the course of manufacture; that is to say, we think that the clause in question, which is somewhat general in its terms, should be construed in the light of the nature of the business and the character of the transaction to which it is to be applied. These considerations lead to the conclusion that an issue of fact is involved here which under the provisions of the statute and as matter of justice should not and cannot be decided upon affidavits under rule 113 of the Rules of Civil Practice.
Order reversed, with ten dollars costs, and motion denied, with ten dollars costs; judgment reversed, with costs.
Mullan, J., concurs; McCook, J., dissents in opinion.