Opinion
May 11, 1967
Judgment after jury trial, unanimously modified, on the law, to the extent only of reducing amount awarded in favor of third-party plaintiff against appellants to the sum of $4,000, together with interest from October 14, 1955, the date of purchase, and except as so modified, affirmed, without costs to either party as against the other. The Statute of Limitations constitutes no bar to the third-party action. Former section 94 Pers. Prop. of the Personal Property Law, now repealed, is the only pertinent statute, and the applicable warranty was one relating to "quiet possession". As such, the warranty was not broken until the possession of the painting by List was disturbed, which time was within the statute. ( Delaware Bank v. Jarvis, 20 N.Y. 226; Moore v. Maddock, 224 App. Div. 401, 409-410, affd. 251 N.Y. 420; McConkey Realty Corp. v. Wildermuth, 214 App. Div. 395.) The applicable measure of damages was the price list paid for the painting at the time of purchase, together with interest. ( Staats v. Executors of Ten Eyck, 3 Caines 111, 113; Armstrong v. Percy, 5 Wend. 535; Case v. Hall, 24 Wend. 102.)
Concur — Stevens, J.P., Steuer, Tilzer, Rabin and McGivern, JJ.