Fourth Department, May, 1906. [Vol. 113. Upon the argument counsel contended strenuously that this statute entirely altered the rule of the common law. Justice WILLIAMS, in speaking of this argument, said: "I have only one further remark to make, and that arises on a suggestion that the effect of s. 14 of the Act is to invert the rules of law which were applicable before the Act, and to apply to latent defects the rule formerly applicable to patent defects, and to apply to patent defects the rule formerly applicable to latent defects. It is not necessary to decide this point, but I think if the sub-sections are considered it will be found that no such alteration of the law has been made." The court thereupon denied the motion for a new trial, discharged the rule and directed judgment for the plaintiff upon the verdict. So far as this English statute goes, it does not seem, as said by Justice WILLIAMS, to have altered to any great extent the rules of the common law, but has codified them so far as such a codification is possible, and has abolished the distinction between the manufacturer and a seller not a manufacturer, under certain circumstances, which at common law really placed them upon the same footing. But there is nothing in the facts of the case at bar that will bring it within the definition even of the English act. The · buyer did not rely on the seller's skill or judgment as to the particular purpose for which the goods were intended, nor were they, within the meaning of the language employed, bought by description, and even in England, under the English act, this case would necessarily be determined under the rules of the common law. It would be needless and in fact worse than useless to attempt in this opinion to review the vast multitude of cases which have arisen in England and in the different States of the United States. When these cases are critically examined it will be found that in every one of them, where there was a latent defect for the existence of which the seller was held liable, the seller was either the manufacturer of the article itself or the buyer relied upon his skill and judgment to devise the thing itself for the particular purpose for which it was required and the seller undertook, either by manufacture or by selection from others, to devise or select a thing which would answer the buyer's purpose, the buyer leaving the determination of that question entirely to the seller. Counsel for the defendant has cited upon his brief a short article App. Div.] Fourth Department, May, 1906. upon this question in 16 Harvard Law Review, 590, in which the writer endeavors to show that there ought to be no sound distinction between the liability of a seller under an executory contract for goods having a patent defect and those having a latent defect and refers to the English Sale of Goods Act as a step in advance and an abolition of this distinction in that country, and seems to recognize the fact that the distinction does exist here and should be remedied by legislation. Take the case of Kellogg Bridge Company v. Hamilton (110 U. S. 108). That is a case which laid down the doctrine of implied warranty where the builder and manufacturer of a bridge sold it to another, with certain of its defects in construction due to carelessness; the court held, under the circumstances of that case, that there was an implied warranty, and yet the case has been cited a hundred times as authority for the proposition that in a contract of sale, purely executory, of goods not manufactured by the seller, there is an implied warranty against latent defects. A case in the State of New York which would be absolutely conclusive upon me, were I inclined to an opposite opinion, was decided in this judicial department in Reynolds v. Mayor, Lane & Co. (39 App. Div. 218). In that case an executory contract was made with the defendant, under which it agreed to supply in the future certain watercloset tanks. The defendant ordered the tanks from a Cincinnati company, they were placed in position in the plaintiff's building and it was then discovered that they failed to work by reason of some latent defect. There was strong evidence in the case of an express warranty, but the trial justice took this question from the jury and submitted to them solely the question, was there an implied warranty, the contract being executory. The jury found for the plaintiff. The court reversed the order denying the defendant's motion for a new trial, upon the ground that the defendant, not being the manufacturer, there was no warranty against a latent defect, but the court strongly intimated that upon another trial an express warranty might be established. The court in concluding its opinion says: "It will be seen that the defendant not only had nothing whatever to do with the manufacture of the articles sold, but Fourth Department, May, 1906. [Vol. 113. that it never even saw them. In these circumstances with what propriety can it be assumed that the defendant was so familiar with the process of manufacture of these articles as to be aware of the existence of some latent defect therein, or upon what principle of justice can it be held that because the articles were designed for a particular purpose they were sold under an implied warranty that they were adapted to that purpose. We find no authority for such a proposition, but, upon the contrary, the cases are numerous which hold that to bring a party within the rule adopted by the trial court he must be the manufacturer as well as the seller of the property sold." (Citing many cases.) This language, while rather broad and laying down as universal a rule to which there are some exceptions not noticed in the language used, nevertheless lays down the true rule of law applicable to the facts in the case which the court decided. The question was squarely before the court upon an executory contract for the future sale and delivery of goods fit for a specific purpose, and the court held that there was no implied warranty against latent effects. Surely, upon the facts in that case, had the articles, when they arrived, been of a kind different from those ordered or not merchantable, having patent defects discoverable upon inspection, then, within all the rules applicable to that class of contracts, the defendant could have returned, or offered to return, and escaped any liability. One contention upon the part of the defendant's counsel most ingeniously urged is, that under the circumstances of this case, inasmuch as the plaintiff was applied to by the defendant to manufacture these articles, and the plaintiff suggested that it would be better to procure them elsewhere, a suggestion in which the defendant's agent concurred, that the plaintiff by selecting the Rochester firm as the manufacturer made it the plaintiff's agent, and, therefore, the defect arising from improper methods of manufacture by the plaintiff's agent, the plaintiff became liable within the case of Hoe v. Sanborn. But I cannot subscribe to this contention. It might with even greater force be urged that because the defendant authorized the plaintiff to procure the goods from any manufacturer that it pleased to order from, that the defendant thereby constituted the plaintiff its agent for the purchase of the goods. Either App. Div.] of these conclusions would be equally strained. As shown by the correspondence between the plaintiff and the Gleason Company, the plaintiff, in perfect good faith, purchased from the Gleason Company goods of a certain description, and the relation of vendor and vendee arose between the Gleason Company and the plaintiff and not the relation of agent and principal. A certain remark made by Judge SELDEN, in Hoe v. Sanborn, has in a number of cases been construed as establishing, in the case of a seller of goods, procured by him from the manufacturer, the same extreme doctrine of liability as obtains in the case of a sale by the manufacturer himself. The language used by Judge SELDEN (at p. 562) is: "Where the vendor has manufactured the article with his own hands the inference of knowledge would, plainly, in many cases be strong enough to charge him even in an action for fraud. But if the manufacturing is done by agents the general principles of law would hold the principal responsible for those whom he employs. Wherever the vendor, therefore, has himself manufactured the article sold, or procured it to be done by others, if honesty and fair dealing are ever to be enforced by law, a warranty should be implied." In a number of cases where Judge SELDEN's language has been quoted only the latter part of it has been quoted, "Wherever the vendor, therefore, has himself manufactured the article sold, or procured it to be done," etc., the word "procured" has been seized upon as meaning buying it in the open market from another manufacturer or ordering it from another manufacturer when it is very clear from the text of the whole of the quotation from the learned judge's opinion that by procuring it to be done is meant procuring it to be done by the manufacturer's own servants or agents. Upon the whole case, therefore, I am of the opinion that there was no implied warranty upon the part of the plaintiff against any secret defect in the spur wheels which broke and brought about the accident. For that reason the defendant's claim проп its counterclaim should be dismissed and the plaintiff should have judgment for the amount due upon its claim, with costs of the action. Fourth Department, May, 1908. [Vol. 113. CITY OF BUFFALO, Respondent, v. JOHN LINSMAN, Appellant. Fourth Department, May 2, 1906. Municipal corporation - ordinance prohibiting peddling of farm produce during certain business hours restraint of trade. A municipal ordinance which prohibits the peddling of fruits, farm or garden produce on the city streets between five A. M. and one P. M. is void, being class legislation and in restraint of trade by restricting the sale of such products to grocers and shopkeepers. It seems, that a license to peddle granted to a war veteran under chapter 371 of the Laws of 1896, as amended, does not relieve the licensee from compliance with municipal regulations as to licenses. MCLENNAN, P. J., dissented. APPEAL by the defendant, John Linsman, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of December, 1905, affirming a judgment, of the Municipal Court of the city of Buffalo in favor of the plaintiff, rendered on the 16th day of October, 1905. John T. Ryan, for the appellant. Louis E. Desbecker and William B. Frye, for the respondent. WILLIAMS, J.: The order of the Special Term and the judgment of the Municipal Court should be reversed, with costs. The action was commenced by the arrest of the defendant upon a charge of violating section 1 of chapter 17 of the ordinances. The Municipal Court, after a trial, convicted defendant and fined him five dollars and costs. There was a judgment in Municipal Court, and, on appeal, an order of affirmance by the Special Term of the Supreme Court, but no judgment entered on such order. This appeal is from the order and not from any judgment. The ordinance in question provides, in brief, so far as it affects the question here involved, that no person shall offer for sale upon the streets any merchandise without first obtaining a license from the mayor, and no person shall hawk, peddle or vend any fruits, farm or garden produce on the streets between five o'clock in the morning and one o'clock in the afternoon. The defendant, when |