
    Vietor et al. v. Stroock.
    
      (Common Pleas of New York City and County, General Term.
    
    December 2, 1889.)
    Motion for leave to appeal- to the court of appeals. For former opinion, and statement of facts, see 5 N. Y. Supp. 659.
    Argued before Larremore, 0. J., and Daly and Van Hoesen, JJ.
    
      Jacobs Bros., (Noah Davis, of counsel,) for appellant. Blumenstiel & Hirsch, for respondents.
   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 $50, and there is no payment or 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 facts 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 “chinchillas” is disposed of in the opinion delivered on the hearing of the appeal. 5 N. Y. Supp. 659. The point insisted upon is made with respect to a matter of words rather than of substance. The motion should be denied, with $10 costs.  