
    Edwin K. Bready, Doing Business under the Name of Girard Worsted Company, Appellant, v. B. A. Wechsler Co., Inc., Respondent.
    
      Contract — sale — action to recover for goods sold and delivered — no recovery where title to goods did not pass. ■
    
    
      Bready v. Wechsler Co., Inc., 200 App. Div. 78, affirmed.
    (Argued January 23, 1923;
    decided February 27, 1923.)
    Appeal from a judgment, entered July 7, 1922, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint, which set forth a cause of action for goods sold and delivered. Although actual delivery was alleged, plaintiff instead of showing delivery, was permitted over defendant’s objection and exception duly taken, that it was not within the issues since the action was for goods not only sold but actually delivered, to show that the goods were set aside by the plaintiff, at its place of .business and there retained at the request of the defendant and on its representation that it was not ready to receive them. The Appellate Division held that in the absence of an allegation to that effect in the complaint no recovery could be had on that theory and that under rule 5 of section 100 of the Personal Property Law title to the goods did not pass in the absence of actual delivery.
    
      Lazarus Goldstein, Charles J. McDermott and Arthur D. Fisher for appellant.
    
      William R. Page for respondent.
   Judgment affirmed, with costs, on the ground that under rule 5 of section 100 of the Personal Property Law the property in the goods did not pass to the buyer; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound and McLaughlin, JJ. Dissenting: Hogan and Crane, JJ. Absent: Andrews, J.  