#### The Mercury Motor Company, Appellant, *v.*Henry J. McKenna, Respondent.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Automobiles — contract for repairs — actions.

Defendant left his auto with plaintiff to be thoroughly overhauled under an agreement which made no mention as to price or warranty. When the work was nearly completed, a friend of defendant said to Mm in the hearing of plaintiff’s superintendent that he should have sent the car to the makers for such extensive repairs, to which the superintendent responded that he would guaranty the job, or the car, for a year. After the payment of over five hundred dollars for said work, defendant brought back his car several times for trivial repairs. In an action to recover for subsequent repairs, a judgment in defendant’s favor -upon a counterclaim for other repairs made to the car within the year is erroneous.

*365Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the defendant upon a counterclaim entered upon a trial by the court without a jury.

Edgar N. Dollin (George B. Keller, of counsel), for appellant.

M. P. O’Connor (Armin Kohn, of counsel), for respondent.

Page, J.

The action was brought to recover for certain repairs made to defendant’s automobile. The defendant claimed damages for breach of warranty. The defendant took his automobile to the plaintiff and made arrangements to have it thoroughly overhauled. No arrangement was made as to price, nor is it claimed that any agreement to warrant the work to be done was made at that time. When the work was nearly completed the defendant called at plaintiff’s show-room with a friend, who said to defendant, in the hearing of plaintiff’s superintendent, that he should have sent the ear to the makers for such extensive repairs, whereupon the superintendent responded that he would guarantee the job, or the car (the defendant’s witnesses differ as to this), for a year’s time after he finished. The defendant paid the plaintiff $544.85 for -these repairs. The defendant brought.the car back for repairs several times. Most of them were of trivial nature, but a more serious breaking of the differential plaintiff repaired, and sought to collect the charge therefor from the defendant, who refused to pay. For these repairs this action is brought. Defendant had other repairs made to the automobile within the year and seeks to recover therefor in the counterclaim. Defendant recovered judgment.

Even if the warranty was made it was not a part of the original contract, nor was there any new consideration arising at the time that would support it. Defendant’s argument that the warranty was made to prevent the talcingaway of the automobile from plaintiff and sending it to *366the makers has no foundation in the evidence. Ho such intention was expressed by the defendant, nor was it shown that he left the automobile with the plaintiff, relying upon' the warranty. It may be that plaintiff is liable for some of the subsequent repairs, if they were rendered necessary by the unskillfulness or negligence in the original overhauling of the automobile, but, as the case was tried on the theory of a breach of the express warranty, there is not sufficient evidence upon which 'to predicate liability for any other cause.

The judgment must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Lehman and Hotchkiss, JJ., concur.

Judgment reversed, and new trial granted, with costs to appellant to abide event.