Opinion
May, 1923.
Judgment reversed on reargument, upon the law and the facts, and new trial granted, with costs to the appellant to abide the event, unless within twenty days plaintiffs stipulate to reduce the recovery to an amount representing the value of the ninety-three pieces of merchandise delivered, with interest. In the event of such stipulation the judgment is affirmed, without costs. As to the thirty-nine pieces of merchandise undelivered we think the plaintiffs' remedy is by an action for damages for failure to accept the same, title thereto not having passed to the defendant. (Pers. Prop. Law, §§ 144, 145.) (See Larkin v. Geisenheimer, 201 App. Div. 741; affd., 235 N.Y. 547.) Kelly, P.J., Jaycox and Kelby, JJ., concur; Rich and Manning, JJ., dissent. [See 205 App. Div. 844.] Settle order upon notice.