Arnold Kovitz, an Infant, by Rose Kovitz, His Guardian ad Litem, Respondent, v. National Accessories Stores, Inc., Appellant

Arnold Kovitz, an Infant, by Rose Kovitz, His Guardian ad Litem, Respondent, v. National Accessories Stores, Inc., Appellant. [MAJORITY] Defendant, National Accessories Stores, Inc., has appealed from a judgment, based on the verdict of a jury, in plaintiff’s favor in the sum of $2,094.25 entered in the office of the clerk of the county of Albany on November 3, 1937. Defendant is the owner of a store in Albany in which it sells, among other things, bicycles, bicycle parts and accessories. On May 16, 1936 plaintiff, an infant, purchased a bicycle from defendant. On July 11, 1936, while the infant was riding the bicycle the shaft or spindle of the pedal broke and as a result plaintiff was injured. Through his guardian he brought an action against both defendants on the theory of a breach of warranty in the sale of the bicycle. On plaintiff’s motion the action was discontinued as to defendant Homer P. Snyder Manufacturing Company, Inc. The jury rendered a verdict in favor of plaintiff and against the present defendant for the sum of $4,500. The trial judge set this verdict aside unless plaintiff should stipulate to accept $2,000, in which event the motion was denied. Plaintiff filed such a stipulation. In its brief defendant makes this concession, “ we concede that the seller [defendant] knew by implication that the bicycle was to be used to ride upon.” The evidence indicates that the defendant assembled the parts comprising the bicycle. There- is evidence oh which the jury was justified in making a finding that the bicycle was improperly assembled. The verdict is sustained by the evidence. Judgment affirmed, with costs. Hill, P. J., Crapser and Bliss, JJ., concur; Rhodes and Heffernan, JJ., dissent, and vote to reverse the order reducing the verdict from $4,500 to $2,000 and to reinstate the jury’s verdict, and as thus modified, to affirm the judgment.