FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. Although no such execution was issued within the three months named, the plaintiff would be entitled to issue his execution and then have the question of his right to enforce it determined on an application made, either to discharge defendant from imprisonment, or to relieve him from imprisonment under the mandate, as the plaintiff would have the right upon such application to show a reasonable cause why it should not be granted. It might appear that the defendant had been absent from the State during all the period that had elapsed since the judgment was entered. It is also claimed that this execution was prohibited by section 1377 of the Code. But assuming that the execution there mentioned is an execution against the person, it is expressly provided that where an execution is issued upon a judgment, within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted, the prohibition contained in the section does not apply; and as an execution against the property was issued within five years after the entry of judgment, the prohibition is not applicable. Nor does the fact that the execution against the person recited that the execution had been issued to the city and county of New York, when, in fact, it had been issued to the county of Kings, make the execution irregular. There is nothing in the statute that prescribes that this execution against the person should describe the execution which had issued against the property, or that a mistake in such description would invalidate the execution; and the fact was proved by affidavit and uncontradicted that execution had been issued against the property of the defendants to the sheriff of the county in which they reside, as required by section 1489 of the Code. The other objections taken by counsel for the defendants to the execution are not substantial and do not require notice. It follows that the order appealed from must be reversed and the motion to set aside the execution denied, with ten dollars costs and disbursements of this appeal. VAN BRUNT, P. J., O'BRIEN and MCLAUGHLIN, JJ., concurred; PATTERSON, J., taking no part. Order reversed, and motion to set aside execution denied, with ten dollars costs and disbursements of this appeal. App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. ARTHUR SCHROEDER, Respondent, v. COATSVILLE ROLLING MILL Contract to deliver steel· -the words "soft for stamping" constitute a warranty The words soft for stamping," used by way of description in a contract for the delivery of a quantity of steel, constitute a warranty as to the character of the steel which survives its acceptance where it is impossible to determine by inspection the exact quality of steel of this character and the only way in which it can be ascertained, whether or not the steel will stand stamping, is by subjecting it to that process. VAN BRUNT, P. J., and O'BRIEN, J., dissented. APPEAL by the defendants, the Coatsville Rolling Mill Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk's office on the 7th day February, 1898, denying the defendants' motion for a new trial made upon the minutes. John J. Delany, for the appellants. Charles Haldane Johnson, for the respondent. INGRAHAM, J.: The action was to recover the damages sustained by a breach of what is alleged in the complaint to be an "understanding and agreement as well as upon the representation and warranty of the defendants that said steel squares were to be the same quality as steel squares previously sold and delivered by defendants to plaintiff, and should be fit for stamping," upon the sale by the defendants to the plaintiff of certain steel squares by a contract made on the 11th day of April, 1894. The evidence shows that in May, 1893, prior to the time of the sale in question, the plaintiff had purchased from the defendants fifty tons of steel cut in squares. The order for this steel was as follows: "This must be soft for stamping, so presume you must anneal the same. *** Ordinary Bessemer will answer the purpose, as I have had quantities for same people in blue steel." In pursuance of this order a contract was made, but before delivery certain samples were sent to the plaintiff for testing, and 31 295 a164a587 FIRST DEPARTMENT, JUNE TERM, 1898. the test having been successful, the fifty tons were ordered, delivered and paid for. On April 10, 1894, the plaintiff sent to the defendants an order for additional soft steel squares which were to be of the quality theretofore ordered. On April 12, 1894, the plaintiff wrote to the defendants a letter repeating this order which contained this statement: "Quality wants to be soft, same as heretofore, as squares are stamped up." The defendants filled this order by shipping this steel ordered which the answer alleges "was manufactured pursuant to plaintiff's written contract with defendants." The evidence tended to show that said steel squares were not of the quality that were ordered before, as a certain number of them when submitted to the stamping process broke, and were rendered worthless. Here was this evidence that the steel was not soft for stamping. I think there was evidence to sustain this verdict of the jury. The plaintiff proved the delivery of the steel under the prior order; that that steel had been delivered by plaintiff to the same manufacturer for whom the steel in question was purchased; that the steel delivered under the former order did, as a fact, stand the process of stamping and was fit for the purpose for which it was used. The article ordered was steel squares "soft for stamping." This was a warranty of the character of the steel which survived the acceptance of the article. (Dounce v. Dow, 64 N. Y. 416; Day v. Pool, 52 id. 416.) There was evidence tending to show that it was impossible to determine the exact quality of steel of this character from an inspection, and that the only way it could be ascertained whether or not the steel would stand stamping, was by using it in that process. It then appeared that the steel furnished under the order in question did not, as a matter of fact, stand that process, but that many of the plates broke and were thus rendered valueless. There was, upon this evidence, a question for the jury as to whether the steel furnished under the contract in question was of the same quality as had been furnished by the defendants upon the prior order. The defendant offered evidence tending to show that the steel was exactly the same; that steel of this quality, which was of a low grade, was not always uniform, but that sometimes it would submit to such use as this steel was put to, and sometimes it would not. App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. The court submitted the question to the jury, charging them as follows: “If you find these goods were of the same quality, although they did not answer the same purpose the same kind of goods formerly did, then the defendants would be entitled to your verdict. If you find they were not of the same quality, the plaintiff would be entitled to your verdict." To this charge no exception was taken, and the charge seems to have been satisfactory to the parties. It was then, I think, a fair question for the jury upon the evidence, to say whether or not this steel, delivered under the order in question, was of the same quality as that delivered under the former order, and, the jury having found for the plaintiff, the plaintiff was entitled to a verdict. No objection is made as to the amount of the verdict, or as to any questions, except that the cause of action was not proved. The complaint alleges that the steel was sold upon the understanding and agreement, as well as upon the representation and warranty of the defendant. The evidence shows that a certain. quality of steel was ordered, and there was evidence tending to show that the steel ordered was not delivered, and that the defect could not be ascertained until its actual use in process of manufacture. If this was so, the particular squares of steel that were not of the quality ordered, did not comply with the contract, and for those particular squares of steel the plaintiff was not bound to pay. Having paid defendant for it, he was entitled to recover back from the defendants the amount which he had paid for the steel which was not of the quality ordered, and which the defendants had no right to supply to him upon the order as given, and, as the recovery was limited to the amount which the plaintiff had paid the defendants for defective steel thus furnished, we think such a recovery was properly allowed. The judgment is affirmed, with costs. PATTERSON and MCLAUGHLIN, JJ., concurred; VAN BRUNT, P. J, and O'BRIEN, J., dissented. O'BRIEN, J. (dissenting): I dissent for the reason that there was no proof that the plates sold were not of "ordinary Bessemer" steel and "soft for stamping," the same quality as those theretofore ordered. There was no APP. DIV.-VOL. XXXI. 38 FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. specific warranty that they would be suitable for "tops and bottoms of Raines boilers." Defendants did not know to what use they were to be put; and this case, therefore, is like Dounce v. Dow (64 N. Y. 415). VAN BRUNT, P. J., concurred. Judgment affirmed, with costs. 31 298 58 218 In the Matter of the Assignment of ROBERT ADAMS to CHARLES E. WILLIAM E. RITCHIE, Creditor, Appellant. An affidavit which is the basis of an application to take the testimony of a witness out of the State upon commission must, under the requirements of section 887 of the Code of Civil Procedure, show that the person whose testimony is sought to be taken is "not within the State of New York." APPEAL by William E. Ritchie, a creditor of the assignor herein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1898, directing that a commission issue to Providence, R. I., to take the testimony of such assignor upon interrogatories to be annexed to said commission. William B. Tullis, for the appellaut. Raymond Reubenstein, for the respondent. MCLAUGHLIN, J.: The order appealed from must be reversed for the reason that the affidavit upon which it was granted fails to show that the witness whose testimony is sought to be taken is not within the State. The section of the Code of Civil Procedure ( 887), which authorizes testimony to be taken in this way, only permits it to be done when it is made to appear by affidavit that the person whose testimony is sought to be taken is "not within the State." The reason for requiring such fact to be shown is apparent. If a witness who resides in another State is at the time of the trial or the hearing of the proceeding actually within this State, then there is no necessity |