Opinion
December, 1899.
August P. Wagener, for appellant.
C.F. Goddard, for respondent.
The appellant's point, that the defendant's motion to dismiss the second cause of action on the ground that there was no guarantee in the written agreement of March 1, 1893, as to the liabilities of the firm of Howden Fish should have been granted, is not well taken.
The rule of law is that, in order to constitute a warranty, it is not necessary that a vendor should use the word "warranty" or "warrant."
If the language used at the time of the sale upon a fair construction amounts, or is equivalent, to an undertaking on the part of the owner, that the property is what it is represented to be, that is sufficient to create a warranty. Jones v. Mayer, 16 Misc. 588; Udell v. Sarafian, 19 id. 544; Fairbank Canning Co. v. Metzger, 118 N.Y. 265.
We do not think that there was any mistake made by the trial judge in allowing the witnesses to testify from memoranda made by them. See Howard v. McDonough, 77 N.Y. 592. We have examined all the various exceptions and do not think that any one of them presents reversible error. We think that the plaintiff substantially proved his two causes of action. The defendant and his witnesses, by their testimony, have not created a single conflict of evidence.
Judgment and order appealed from affirmed, with costs and disbursements.
Present: FITZSIMONS, Ch. J., and SCHUCHMAN, J.
Judgment and order affirmed, with costs.