Plaintiff brings this action as the assignee of Joseph E. Kennedy to recover the purchase price of a concrete mixer manufactured for the defendant by said Kennedy. The jury rendered a verdict for the defendant, and the learned justice presiding at the Trial Term set the verdict aside and granted plaintiff’s motion for a new trial for errors in the charge as to the burden of proof.' The jury were told that “ the burden of proving that this machine was ordered and sold without any warranty, without any representation, rests upon the plaintiff, and that means that the plaintiff must satisfy you by a fair preponderance of the evidence * * * that Williams ordered this machine manufactured and delivered to the defendant without receiving from Kennedy any representation or warranty respecting the quality of the machine or the work that it would do.” If the defense in this ease had rested upon the breach of an implied warranty the rule as stated would have been correct. When the contract is executory, in the absence of an- express warranty as to quality, there is an implied warranty upon the sale of a chattel by the manufacturer thereof that the chattel is reasonably fit and suitable for the purpose for which it was intended and was purchased. (Hoe v. Sanborn, 21 N. Y. 552; Edwards v. N. Y. & *712H. R. R. Co., 98 id. 245 ; Bierman v. City Mills Co., 151 id. 482.) There being a presumption that such warranty existsithe' burden of proof rests, on-the plaintiff to establish that in fact there was none. “ The burden, of proof in any proceeding lies * ^ * on that party against whom tlie judgment * * * would be given if no evidence at all were produced on either side, regard being ¡had to any presumption which may appear upon the pleadings.” (Steph. Dig. Ev. [Beers’ N. Y. ed.] art. 95.) Counsel far defendant contends that the language of the tidal justice.may he deemed to relátelo implied warranties only. But the. defendant here did not rely upon an implied warranty that the chattel was generally fit and suitable,hut upon representations as to quality that are in the nature of express warranties, to wit, that it could be operated by hand by two men ; that it would discharge concrete in half-yard batches; that it would work to the entire satisfaction of the defendant, and- that if iit.jdid not, defendant should liave the right to return it. • An express: warranty with reference to quality precludes an implied warranty With reference thereto, even though it relate to a' different quality. (Baldwin v. Van Deusen, 37 N. Y. 487; De Witt v. Berry, 134 U. S. 306 ; Carleton v. Lombard, Ayres & Co., 72 Hun, 254, 260; Deming v. Foster, 42 N. H. 165.) Although’ a subsequent decision in the Carleton case, above referred to (see 78 Hun, 616), was reversed in the Court of Appeals (149 N. Y. 137), the rule above stated’ Was not only not questioned, but was expressly affirmed, as appears from the opinion on the motion for a reargument. (Carleton v. Lombard, Ayres & Co., 149 N. Y. 601.) That .the jury could not have understood the charge as relating to an implied, as distinguished from ail express, warranty is. emphasized by the fact that when counsel ¡for defendant asked the court to charge the law relating to implied warranty, it refused upon the ground that the answer alleged an express warranty, and that the. case had been tried upon that theory. Therefore, when counsel for plaintiff excepted to that portion of the charge in. which thé jury were.instructed “that the burden of proof is on the plaintiff in relation to the warranty,” they must have understood that it related to the express .warranty which was ííejied on in that case. Breach of an express warranty is an affirmative defense, and the burden of proving such a defense is upon the defendant. ’(Blunt v. Barrett, 124 N. Y. 117.) The burden of *713proof, therefore, in this case was upon the defendant to show, in tiie first place, the existence of the express warranty alleged, and then the breach of it. . Plaintiff was only called upon to tn.eet such evidence after it had been introduced, and the duty did not devolve upon it of establishing the negative, that there had been no such warranty as defendant claimed. The contract was oral, and one of the chief questions litigated upon the trial was whether such representations as the defendant alleged to have been made were in fact made. We cannot say that the error above referred to was a harmless one, and, therefore, the motion for a new trial was properly granted.
The order setting aside the verdict and granting the motion for a new trial should be affirmed, with costs.
_ Woodward, Jenks, Thomas and Rich, JJ., concurred.
Order setting aside verdict and granting a new trial affirmed, with costs.