Opinion
October 27, 1967
Appeal by Empire Glass Works, Inc., from so much of a judgment of the Supreme Court, Ulster County, adjudging, in action number one, that Millens Sons, Inc., have judgment against Empire Glass and dismissing, in action number two, Empire Glass' complaint against Millens Sons and a cross appeal by Millens Sons from so much of the judgment as dismissed its first and second causes of action against Nick Vladich. In the Spring of 1962 William Stapleburg, a contractor employed by Vladich to build motel units, approached Millens Sons concerning the purchase of aluminum doors for these units. Millens Sons, a dealer in steel and paper mill supplies, stated that it did not carry such doors, that it had never dealt with aluminum doors, and that it did not know where to purchase them. Stapleburg, however, urged Millens Sons to try and get them for him and after about two weeks Millens Sons contacted Empire Glass who agreed to supply them. On May 23, 1962 Stapleburg placed an order for 17 doors with Millens Sons, and though Stapleburg's authority to act as Vladich's agent was temporarily withdrawn, Vladich himself placed a similar order with Millens Sons dated June 9, 1962. Millens Sons in turn placed the order for the doors with Empire Glass containing Vladich's specifications as to size, type of lock, type of panels and delivery date. Millens Sons' order also contained a statement that this was for the "Kingston Motel Job" and a sketch showing that all the doors were to swing into the rooms. Upon arrival, while the doors met the specification, Vladich contended that they were unsatisfactory in a number of respects, mainly the fact that the doors swung into the rooms rather than out — the argument being that Empire Glass should have known that the doors, despite the specifications, would not function properly if they swung in — no door knobs were supplied making it difficult to close the doors; the location of the locks resulted in scraped knuckles and the 1/4 inch panels were too thin. The parties discussed Vladich's complaints and on July 30, 1962 Vladich and Millens Sons entered into an agreement whereby each consented to pay one half the cost of replacement of the panels and of the installation of door knobs. Although thicker panels were subsequently offered to Vladich, it developed that it was impractical to install door knobs. Vladich, nevertheless, went ahead and installed the door frames because the bricklayers could not proceed until they were in place. The frames are still encased in the concrete of the motel and the doors themselves remain in Vladich's cellar. Subsequently, the instant actions were brought. In action number one Millens Sons sought recovery against Vladich for the balance due on the sale of the doors by foreclosing a mechanic's lien and for breach of contract relating to the modification and at the same time brought an alternate cause of action against Empire Glass for breach of an implied warranty of fitness for a particular purpose allegedly made to it by Empire Glass. Vladich in turn counterclaimed in this action alleging a breach of an implied warranty of fitness for a particular purpose by Millens Sons. In the second action Empire Glass seeks to recover from Millens Sons the sum still due it on the aluminum doors. The trial court, after a jury verdict, rendered judgment of no cause of action in favor of Vladich upon Millens Sons' claims in action number one, and in favor of Vladich against Millens Sons upon his counterclaim; in favor of Millens Sons in action number one against Empire Glass; and in favor of Millens Sons dismissing Empire Glass' complaint in action number two. The appeals herein ensued. Taking first Vladich's recovery against Millens Sons; it is clear that Vladich could recover against Millens Sons for a breach of warranty under subdivision 1 of section 96 Pers. Prop. of the Personal Property Law, then applicable, only if it were established both that Millens Sons were aware of the purpose for which the goods were to be used and that Vladich relied on Millens Sons' skill and judgment upon placing the order with it ( Wasserstrom v. Cohen, Frank Co., 165 App. Div. 171, 173). There is no question that Millens Sons was well aware that the doors were purchased for use in a motel, thus permitting a finding that the first requirement was met, but there is not only absolutely no proof of any reliance by Vladich on Millens Sons' skill and judgment (there was an express disclaimer by the retailer of any knowledge or skill concerning aluminum doors upon which the buyer could rely) but all proof presented is clearly and definitely that such was not in fact the case and that rather the doors were made according to exact specifications supplied by Vladich, which, of course, precludes any warranty of fitness for a particular purpose ( Stroock Plush Co. v. Talcott, 150 App. Div. 343; 51 N.Y. Jur., Sales § 173, p. 197). Since there is no evidence at all to sustain the jury's verdict to the contrary, the judgment must therefore be reversed and the cause of action dismissed (7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5522.03, p. 55-156). Of course, once Vladich's counterclaim against Millens Sons has failed, Millens Sons' claim over against Empire Glass based on the same theory must also be dismissed. We, however, see no reason to remand the case for retrial when having disposed of the warranty issues, on the law, no factual issues remain (CPLR 5522). Accordingly, the judgment should be modified to provide in action number one that Vladich's defense and counterclaim be dismissed; that judgment be directed in favor of Millens Sons against Vladich in the amount of $2,678.67, and interest, on cause of action number one; and $145.70, and interest, on cause of action number two and that Millens Sons' cause of action against Empire Glass be dismissed; and in action number two that judgment be granted against Millens Sons in favor of Empire Glass in the amount of $291.40, and interest. Judgment modified, on the law and the facts, without costs, to provide in action number one that the defense and counterclaim of Vladich be dismissed and that judgment be directed in favor of Millens Sons on its first cause of action in the amount of $2,678.67, and interest; and on its second cause of action in the amount of $145.70, and interest; and that Millens Sons' cause of action against Empire Glass Works be dismissed; and in action number two that judgment be directed in favor of Empire Glass Works against Millens Sons in the amount of $291.40, plus interest, without costs. Settle order. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Reynolds, J.