#### The Pennsylvania & Delaware Oil Co., Respondent, *v.*Reuben Spitelnik et al., Appellants.

(Supreme Court, Appellate Term,

May, 1899.)

1. Sales — A salesman cannot warrant unless it is the custom.

In the absence of proof that an express warranty usually attends a sale of blending oils, a mere salesman has no power to give such a warrant upon such a sale and bind his principal.

3. Municipal Court of the city of Mew York — Denial of any knowledge, etc., sufficient to form a belief not permissible.

A denial “ of any knowledge or information sufficient to form- a belief ” is not permissible in the Municipal Court of the city of New York.

Appeal from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhat-' tan, second district.

*558Miles Bosenbluth, for appellants.

Theodore Prince, for respondent.

Leventritt, J.

The plaintiff recovéred judgment for the purchase price of a number of barrels of paint and blending oils sold and delivered to the defendants. The transaction was consum-. mated through a salesman, who represented that the oils would dry in twenty-foiir hours. Mo evidence was introduced to show that he had authority to warrant, or that ,a warranty usually and customarily attended the sale of such oils. In the absence of that proof the defendants’ counterclaim resting on the plea of the breach of an express warranty must fail.

It is a well-recognized principle in the law of sales that an agent employed to sell without express power to warrant cannot give a warranty • which shall bind his principal, unless the sale is one usually attended with warranty.- 1 Parsons on Contracts (8th ed.), 60; Smith v. Tracy, 36 N. Y. 79; Bierman v. City Mills Co., 151 N. Y. 482. In Wait v. Borne, 123 N. Y. 592, the court say: “ The idea upon which is founded the rightxto warrant on the part of an agent to' sell a particular article, is that he has been clothed with power to make all the common and usual contracts necessary or appropriate to accomplish the sale of the articles entrusted to him. And if in the sale of that kind or class of goods thus confided to him it is usual in the market to give, a warranty, the agent may give that warranty in order to effect a sale, and the law. presumes that he has such authority. If the agent, with express authority to sell, has no actual authority to warrant no authority can be implied where the property is of a description not ■usually sold with warranty ” (pp. 603, 604).

It is obvious, therefore; that the justice was bound to reject the counterclaim:

*On*this appeal the defendants shift from express to implied warranty. Although not even the most liberal construction of the verified answer can spell out of the pleading a cause of action for the recovery of damages for the breach of an implied warranty, yet, even ■disregarding the deficiency of the plea, the record'does not disclose a state of fgets which would support the defendants’ newly adopted theory. In the case of League Cycle Co. v. Abrahams, 27 Misce. Rep. 548, decided at the present term of this court, we considered at some length principles equally applicable to the counterclaim *559here sought to be interposed. In that case,as in this, the defendant accepted the goods, and we there held that the promise which the law implies in executory'sales, on the part of the manufacturer, that .the articlg sold shall be merchantable and fit for the purpose in-, tended, survives acceptance only respecting those defects which are latent and not discoverable, by due diligence, by ordinary inspection and by the application of the ordinary and usual tests. Conceding that the defects in the oils were latent, the defendant could not prevail whichever version of his conflicting testimony we accept. On his direct examination he maintained that a mere experiment revealed the defects; on his cross-examination, he asserted that he made no inspection. Whichever horn of the dilemma he elécts to take, his claim for damages must fail as a result of his acceptance of the oils. It is evident from a perusal of the record that the defense founded on the implied warranty was an afterthought. If the express warranty had been proven then the experiment revealing the defects would have established the right of recovery (Hooper v. Story, 155 N. Y. 171), and the omission of inspection would not have precluded it,- because under an express warranty the vendee is under no obligation to inspect.

The defendants also raised che technical objection that the plaintiff being a foreign corporation failed to prove the allegation in the complaint that it had regularly filed a certificate -of its incorporation, as required by law, as a prerequisite to the maintenance of an action in the courts of this state. The defendants, however, were in no position to attack this allegation on the trial, as the denial of 'it- in the answer was insufficient. They challenged it by denying “ any information sufficient to form a belief ” of - the filing of the certificate. Denials in the old District Courts -— and hence now in the Municipal Court (Charter, § 1369) —were limited to denials upon knowledge (Code Civ. Pro., § 2938; Cons. Act, § 1347, subd. 1) and by judicial construction to denials upon information and belief. Bennett v. Leeds Mfg. Co., 110 N. Y. 550.

But a denial of *“*any knowledge or information sufficient to form a belief ” while allowed in a court of record is not permitted in the Municipal Court. Lambert v. Hoffman, 20 Misc. Rep. 331. So a denial of knowledge sufficient to form a belief is bad (Dennison v. Carnahan, 1 E. D. Smith, 144), and the specific form of denial here adopted has been otherwise condemned. Steinam v. Bell, 7 Misc. Rep. 318. The latter forms of denials are unavailing even in courts of record and leave admitted the allega*560tions against which they are' directed. Heye v. Bolles, 33 How. Pr. 266. There is.no merit in the exceptions taken at the trial,' and as the disposition of the cause below wa's correct, the judgment must be affirmed.' „

Freed man, P. J., and MacLean, J., concur.

Judgment , affirmed, with costs' to the respondent.