Epstein v. Brooks , 72 N.Y.S. 1101 ( 1901 )

Per Curiam.

The action is in the ordinary form for goods sold and delivered. The answer is first practically a general denial; and, second, a specific allegation of an executory contract of sale, in which plaintiff made certain representations as to the condition of the goods offered. It is claimed by the defendants, and so found by the jury, that there never was an acceptance of the goods offered, and the evidence of the defendants is to the effect that the plaintiff called after the delivery of the goods and stated that he would take them away, and did, in fact, put them in condition for removal, and promised to send for them in a day or two. He was subsequently notified to remove them as they were in the defendants’ way.

It is somewhat remarkable in this case that no exceptions were taken by the plaintiff to the charge of the trial justice, and, indeed, the only exception by him of any effect is the exception to the refusal to set aside the verdict at the close of the trial.

We have examined the case with care, and have given to it due consideration, and have reached the conclusion that the verdict of the jury was the only proper determination of the issues presented, and that the order setting aside the verdict and granting a new" trial Was error which calls for reversal.

Order appealed from reversed, with cpsts, and the verdict and judgment allowed to stand.

Present: Conlan, Hascall and O’Dwyer, JJ.

Order reversed, with costs.