
    James K. Newbold, Respondent, v. George F. Fish, Appellant.
    
      Newbold v. Fish, 160 App. Div. 930, affirmed.
    (Argued December 3, 1915;
    decided December 17, 1915.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 27, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for an alleged breach of contract. The complaint alleged that on or about the 15th of March, 1912, the plaintiff’s assignor sold to the defendant a crop of celery then on the field at Sanford, Fla., and that the defendant had agreed to pay therefor at the rate of two dollars and fifty cents per crate, except for culls, for which the defendant was to pay at the rate of one dollar per crate; that defendant received and took of said crop three cars of celery, but that he refused to accept the balance of nine cars. The answer substantially alleged the purchase by the defendant of the crop in question, but further alleged as part of the agreement of purchase that the plaintiff agreed to strip all blighted leaves from the said celery, and grade the same so as to deliver different sizes of celery in different boxes; and in paragraph 6 of the answer it is alleged that when the said celery was received it was not stripped of decayed or blighted leaves and graded according to size, but was of a poor quality and was not packed as agreed upon and contained large quantities of decayed and blighted leaves and green stalks.
    
      Theodore H. Lord and Maurice B. Gluck for appellant.
    
      Moses Feltenstein and Joseph Levy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Ch. J., Hiscock, Collin, Cuddeback, Cardozo, Seabury and Pound, JJ.  