
    John A. Plimpton, Appellant, v. Brown Brothers Company, Respondent.
    
      Plimpton v. Brown Brothers Co., 172 App. Div. 936, affirmed.
    (Submitted November 14, 1918;
    decided December 3, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 25, 1916, affirming -a judgment in favor of plaintiff for an amount less than that demanded in the complaint entered upon a verdict directed by the court. The action was to recover damages alleged to have been sustained by plaintiff as the result of the failure of certain fruit trees, purchased by him of the defendant, to prove true to name. The contract under which the trees were purchased contained this provision, “ Any stock which does not prove true to name, as labeled, is to be replaced free, or purchase price refunded, but is not further warranted.” The trial court and the Appellate Division held that this provision limited the liability of the defendant to the purchase price of the trees.
    L. M. Sherwood for appellant.
    
      Byron A. Johnson and George S. McMillan for respondent.
   Judgment affirmed, with costs; no opinion

Concur: His cock, Ch. J., Chase, Collin, Cuddeback, Hogan, McLaughlin and Crane, JJ.  