
    The International Tile & Trim Co., Resp’t, v. Henry Ahlers, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    Sale—Sample—Acceptance.
    Plaintiff sold by sample to defendant certain mantels and fireplaces for ornamental purposes. The ones furnished were not according to sample, and were so imperfect as to be a disfigurement. Held, that the fact that the mantels remained in place did not constitute such an'acceptance as to relieve plaintiff from the result of its breach of the contract; that if it abandoned the attempt to fulfil the contract and wished to recover the mantels, it should assume the burden of taking them away and restoring the rooms to their original condition.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    Action to recover the purchase price of two' ornamental mantels and the accompanying tiles, grates and lining.
    
      Wm. M. Benedict, for app’lt; Horace Graves, for resp’t.
   Pratt, J.

The mantels and fireplaces contracted for were for ornament, not use. Their whole value was to be in the beauty and elegance they were expected to add to the rooms in which they were to be placed.

The orders were given from samples on exhibition in plaintiff’s show room, and were to be executed according tó the sample.

The performance was not according to the sample and was so imperfect that instead of being ornamental it was a disfigurement. And as the only value of the mantels and fireplaces was in the expected ornamentation, no benefit was conferred on defendant.

There was some effort made to show that defendant had accepted the work, but we think nothing that could relieve plaintiff from the result of its breach of contract.

The mantels were in place,, and it is not reasonable to require that defendant should take them out and return them to the plaintiff; on the contrary, if plaintiff abandons the attempt to fulfil its contract and wishes to recover the mantels, it should assume the burden of taking them away, and restoring the rooms to their original condition.

Judgment reversed on the facts; new trial 'rdered at circuit, costs to abide event

Barnard, P. J., and Dykman, J., concur.  