Co-op Industries, Inc. v. Pal Pools, Inc. 59 A.D.2d 753

In an action for goods sold and delivered, in which defendant counterclaimed to recover damages for breach of warranty, negligence and loss of profits and good will, the parties cross-appeal from a judgment of the Supreme Court, Suffolk County, entered October 31, 1973, which, after a nonjury trial, is in favor of plaintiff in the principal amount of $5,291.82, upon crediting defendant with the sum of $18,000 on its first and second counterclaims. Judgment affirmed, without costs or disbursements. We agree with Trial Term that the evidence showed a breach of both express and implied warranties by plaintiff-appellant-respondent. However, we find no evidence to support the separate finding of plaintiff’s negligence in construction, fabrication and manufacture of the merchandise in question. Since the amount of damages awarded to defendant-respondent-appellant on its counterclaims in the nature of a setoff was properly measured pursuant to the breach of warranty theory, no modification of the judgment is required. Hopkins, J. P., Margett, Damiani and O’Connor, JJ., concur.