
    James McCutcheon & Company, Respondent, v. Ralph H. Kimball, Appellant.
    
    Supreme Court, Appellate Term, First Department,
    April 23, 1930.
    
      Denis O’L. Cohalan, for the appellant.
    
      George Thoms, for the respondent.
    
      
       Revg. 135 Misc. 299.
    
   Per Curiam.

The plaintiff’s agents having stated that plaintiff was unable to deliver the fourth rug in less than six or eight weeks (which was more than a reasonable time as the order related to goods in stock), and the statement having been accepted by defendant as an anticipatory breach of the contract, the contract was rescinded. The buyer was not called upon to give any notice to perform thereafter. The manner of storing the three rugs did not amount to an acceptance by defendant. Property in the fourth rug never passed to the buyer.

The judgment is reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur; present, Lydon, Callahan and Peters, JJ.  