
    Bernard Abel, Respondent, v. Michael H. Murphy, Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Proof of scientific relation of goods not proof of commercial identity.
    Proof of the scientific relation of classes of fruit does not establish that for commercial purposes they are identical in kind.
    
      Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, first district, borough "of Manhattan, rendered in favor of the plaintiff. Action for goods sold and delivered, with counterclaim for breach of warranty.
    Henry Y. Hart, for appellant.
    Truax, Watson & Roberts, for respondent.
   Bischoff, J.

The issue was whether a delivery of cases of fruit known - as “shaddocks” upon an order for grape fruit was a compliance with the order, as to kind, thus concluding the matter of quality through acceptance, or whether the distinction went to the identity of the goods delivered with the goods ordered.

It is apparent from the evidence, mainly the opinions of experts, that, while scientifically related, “ shaddocks ” Were not grape fruit for commercial purposes, and there is, therefore, no reasonable basis upon the proof for a conclusion that the goods ordered were delivered, with a difference of quality merely. The scientific relation of these classes of fruit does not affect the fact that for the actual purposes of the transaction between the parties they were distinct, in kind, and while the plaintiff, upon the trial, withdrew the admission that shaddocks were not grape fruit, and sought to prove the contrary, to meet the ground upon which a prior judgment was reversed by this court (Abel v. Murphy, 43 Misc. Rep. 648), the evidence failed to establish that there was any substantial identity.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event. ,

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to .abide event.  