
    Alfred Olenick, Appellant, v. Morris Haber et al., Respondents.
    Modification and merger of contracts — Merger of contract of sale in , deed.
    Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of Hew York, ¡Ninth District, borough of Manhattan.
    Schleimer & Schleimer (Max Schleimer, of counsel), for appellant.
    Henry Bloch, for respondents.
   Per Curiam.

There seems to have been sufficient testimony, introduced without objection, tending to show that the gas ranges, the subject of this action, were the property of the ¡Northern Union Gas Company at the time they were agreed to be conveyed to the plaintiff by the defendants, which agreement was afterward consummated. Upon the question of merger of the contract made between the parties, in the subsequent warranty deed given by the defendants, this court in the case of Wynne v. Friedman, 49 Misc. Rep. 616, held, upon a similar state of facts, that no merger took place and a judgment for the value of the ranges was affirmed.

¡Present: Scott, Gieghrich and Gbssehbaum, JJ.

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