
    Schrimpton et al. v. Scheuer et al.
    
    
      (Common Pleas of New York City and County, Additional General Term.
    
    June 1, 1891.)
    Appeal—Review—Weight op Evidence.
    In an action to recover the purchase price of defective goods sold by sample, there was a conflict of evidence between the parties as to how the goods should be returned. Held, there being evidence to sustain the finding of the justice, that his judgment for the plaintiffs should not be disturbed.
    Appeal from seventh district court.
    Action by Alfred Schrimpton and another against Samuel Scheuer and another. From a judgment for plaintiffs, defendants appeal.
    Argued before Bookstayek and Bischofe, JJ.
    
      Lyman Rindskopf, for appellants. George C. Coffin, for respondents.
   Per Curiam.

The appellants’ counsel is mistaken in supposing the sale of tile 400 gross of needle-cases in controversy was not-by sample. The contract itself expressly says that the sale was by sample, and the case shows that after the delivery of the first lot of goods under the contract, immediately upon the discovery that some of them were defective, the defective ones were returned to the defendants. The plaintiffs’ case contains testimony tending to show that there was then an agreement made by which the plaintiffs were to return the defective goods altogether, and after the entire order had been filled, and not in small lots, as the defects were discovered. It is true this is contradicted by the defendants, but on this point there is conflict of evidence, which it was peculiarly the province of the trial justice to determine; and, there being abundant evidence to sustain his finding, this court will not disturb the judgment on that account. And the same is true of all the other questions raised by this appeal. The judgment should therefore be affirmed, with costs. "  