
    HENRY D. KIPP and others, Respondents, v. PHILIP J. MEYER, Appellant.
    
      Executory contract of sale — recevpi of part of goods by vendee — effect of.
    
    Although the vendeé is hound by his acceptance of a portion of several articles contracted to he sold, after ^.n opportunity to examine them has been had (Gaylord Manuf. Go. v. Allen, 58 ÍT. Y., 515 ; Seed v. Randall, 29 id., 358; McGormiclc v. Sccrson, 45 id., 265), yet the vendor is not thereby excused for the non-fulfillment of his contract as to the residue of such articles. If the ven-dee refuse to receive the whole of the inferior articles, or any part of them, the vendor is liable in damages for the non-fulfillment of his contract in full. He cannot relieve himself from the fulfillment of the contract on his part, by inducing the vendee to accept some part of the articles contracted to be delivered.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    
      McDonald & Dames, for appellant. M. H. Peck, for respondents.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Gilbeet, JJ.

Judgment reversed and new trial granted, costs to abide the event.  