
    George F. Vietor et al., Resp’ts, v. Louis S. Stroock as Surviving Partner, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    Sale—Acceptance—Leave to go to court of appeals.
    In this case there was no question as to delivery and the facts evidencing acceptance bring it within the case of Gross v. O’Donnell, 44 N. Y., 661. Held, that there was no question to submit to the court of appeals and leave to appeal to that court should he denied.
    Motion for leave to appeal to the court of appeals.
    
      Jacobs Brothers (Noah Davis, of counsel), for motion ; Blumenstiel & Hirsch, opposed. •
    
      
       See 25 N. Y. State Rep., 742.
    
   Daly, J.

—There seems to be no question to submit to-the court of appeals in this case. The decision in Cross v. O’Donnell, 44 N. Y., 661, does not conflict with that in Shindler v. Houston, 1 N. Y., 261, as to what constitutes “ acceptance ” of goods, under the statute of frauds, where the price is over fifty dollars and there is no payment nor memorandum in writing. In the latter case there was no acceptance and delivery as required by the statute. In the case before us there was no question as to the delivery and the facte evidencing acceptance bring it within the decision in Cross v. O'Donnell, first above cited.

The contention as to the rule that the recovery in an action must be according to the pleadings as well as the proofs with respect to the averment of a sale of “ chincillas,” is disposed of in the opinion delivered on the hearing of the appeal. The point insisted upon is made with respect to a matter of words rather than of substance.

The motion should be denied, with ten dollars costs.

Larrehore, CL J., and Van Hoesen, J., concur.  