
    Bastian Brothers Company, Appellant, v. Regal Doll Manufacturing Co., Inc., Respondent.
    
    Fourth Department,
    November 7, 1929.
    
      Kenneth B. Keating, for the appellant.
    
      Herman H. Levy, for the respondent.
    
      
       Revg. 133 Misc. 136.
    
   Per Curiam.

The jury was fairly entitled to find that there was not a sale by sample and that there was no warranty, express or implied; that plaintiff furnished celluloid shells for a certain purpose, and had nothing to do with adjusting them in the dolls’ heads; that between August 8 and 24, 1925, 40,000 shells were delivered by plaintiff, and paid for by defendant by October 5, 1925, and that defendant made no complaint that the shells were unsatisfactory till May, 1926; that defendant, through its representative Freedman, stated that the shells were all right and could be adjusted to meet any condition of a correct assembly;” and that Freedman approved the final samples submitted by plaintiff. Many shells, eyes and heads with the eyes adjusted in them were exhibited to the jury at the trial, giving the jurymen the opportunity to determine for themselves what caused any bad appearance in the eyes. The jury was thus given warrant to find that the goods, as furnished by plaintiff, were suitable for the intended use; that plaintiff had met its contractual obligation; and that any defect in the completed heads was due to improper adjusting of parts by defendant, or to unsuitable “ assemblies ” furnished by other persons.

The judgment appealed from should be reversed, and the verdict reinstated, with costs to appellant.

All concur. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.

Judgment reversed on the law and facts and verdict reinstated, with costs.  