Opinion
December, 1917.
Delivery and acceptance of the drum of glycerine taken by plaintiff on September fifteenth, and paid for as billed at the modified rate of twenty-two cents per pound, might be a compliance with the New York Sales Act, section 85, as an acceptance of part of the goods contracted to be sold. Whether this was so intended would be for the jury. The complaint, therefore, should not have been dismissed on the ground that after June thirtieth there was no note or memorandum to satisfy the Statute of Frauds. Although in the clash of opposing motions at the close of plaintiff's case plaintiff did not expressly ask to go to the jury on any issue, we think the interests of justice require a new trial. Judgment reversed and new trial granted, costs to abide the event. Stapleton, Mills, Rich, Putnam and Blackmar, JJ., concurred.