
    (35 Misc. Rep. 303.)
    GANSER v. WEBER
    (Supreme Court, Appellate Term.
    June, 1901.)
    Contract of Sale—Rescission.
    Where defendant agreed to deliver to plaintiff leaf tobacco to a certain amount in two installments, and the first installment was returned as defective, refusal to accept it constituted such a breach as gave the seller a right to rescind.
    Appeal from municipal court, borough of Manhattan, First district.
    Action by Samuel Ganser against Samuel Weber. Judgment for defendant, and plaintiff appeals. Affirmed.
    Argued before SCOTT, P. J., and BEACH and FITZGERALD, JJ.
    Goldfogle, Cohn & Lind, for appellant.
    Leonard A. Snitken, for respondent.
   PER CURIAM.

This action was instituted under the following circumstances: The plaintiff was the owner of a cigar store situated in the city of New York, of which he made a bill of sale to the defendant for a consideration of $249, to be paid partly in merchandise and partly by the extinguishment of an antecedent debt. Simultaneously with the execution of the bill of sale, the defendant executed an agreement in writing, by the terms of which he agreed to deliver to the plaintiff leaf tobacco to the amount of $200, in two parts. The first of the installments of leaf tobacco was received by the plaintiff on July 25,1900, and returned by him to the defendant the succeeding day, as being defective in quality. There was a conflict of evidence regarding the quality of the tobacco furnished, but, upon an examination of the testimony submitted, we are not inclined to disturb the finding of the trial court. The defendant’s motion for a dismissal of the complaint upon the ground that the action was prematurely brought was properly denied. The contract of sale was entire, and the refusal of the buyer to accept one of the installments constituted such a breach as gave the seller a right to rescind. Pope v. Porter, 102 N. Y. 366, 7 N. E. 304; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Van Sickle v. Nester, 34 Hun, 64.

Judgment affirmed, with costs.  