
    George F. Vietor et al., Respondents, v. George T. Nichol et al., Appellants.
    (Supreme Court, Appellate Term,
    March, 1898.)
    1. Sales — Evidence of a right to return defective goods.
    Proof that some of the goods sold were returned to and were accepted by vendors .renders it proper, in an action for the price, to submit to the jury the question whether there was not, as the vendees alleged, an agreement that they were to have the privilege of examining and from time to time returning, defective goods.
    3. Appeal — Effect of excepting to a verdict.
    Where the defendants do no act tending to waive their right to go to the jury, their exception to a verdict, directed in favor of plaintiffs, raises the point whether there were any question's for the jury.
    Vietor v. Nichols, 20 Misc. Rep. 718, reversed.
    Appeal by the defendants from a judgment of (the General Term of. the City Court of Hew York, affirming a judgment entered in plaintiffs’ favor upon a verdict directed by -the court at Trial Term. Action to recover balance of $1,473.87, claimed by plaintiffs to be due for merchandise sold and delivered to the defendants.
    Campbell & Hance (Herbert H. Walker, of counsel), for appellants.
    Blumenstiel & Hirsch (A. Blumenstiel, of counsel), for respondents.
   Giegerich, J.

We think the case should have been submitted-to the jury on the question, whether there was any agreement between the parties by which the appellants were to have the privilege of examining and returning, defective goods, from timé to time, as the articles sold were taken from the plaintiffs’ warehouse. The actual return of goods and the acceptance of the same by the respondents from time to time tended to sustain the claim1 made by the appellants that there was such an agreement," and was a corroborative circumstance which the jury were entitled to take into consideration.

The respondents seek to uphold the judgment on the ground that the appellants did not request to go to the jury upon any question of fact, but as the latter did not move for a dismissal of the complaint,. or ,do any other act from which a waiver of their right to go to the jury could be implied, them exception to the direction-in respondents’ favor is sufficient upon this appeal to raise the point whether there were any questions of fact requiring determination by the-jury. Vail v. Reynolds, 118 N. Y. 297, 301, and citations.

As there must be a new trial, we consider it proper to say that greater care should be shown in putting in the proofs.' Among other things, it is- impossible to- determine from the record what discounts the defendants were entitled to and on what basis they were estimated.

The judgment should, therefore, be reversed land a new trial ordered, with costs to the appellants to abide the event.

Beekmah, P. J., and Gildebsleeve, J., concur.

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