Opinion
June, 1926.
Appeal from Supreme Court, Erie County.
Present — Hubbs, P.J., Davis, Sears, Crouch and Taylor, JJ. All concur. Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.
The contract was for the sale of rough gunstocks known to be defective in quality. It was in writing and a sample was furnished. The defendant subsequent to the making of the contract examined the stock on several occasions, obtained other samples and took into its possession a total of 148. There was evidence from which the jury might have found that there were others of the same general shape and quality to enable plaintiff to make complete delivery of the 7,000 defendant agreed to purchase, and that as to minor variances there had been waiver of objections. ( Littlejohn v. Shaw, 159 N.Y. 188.) It was, therefore, error for the court to direct a verdict and the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.