
    Samuel Bonat and Harry Bonat, Doing Business under the Firm Name and Style of Samuel Bonat & Bro., Appellants, v. Alice Stenersen, Doing Business under the Firm Name and Style of Alice Hairdressing Shop, Respondent.
   In an action for goods sold and delivered, plaintiffs sought to recover the unpaid balance of the purchase price, relying on a written conditional sales contract, signed by defendant, the terms of which provided that it was complete and there were no warranties. The contract provided for payment by a series of notes, the due dates of which were accelerated on default. In her answer defendant claimed the contract was oral, that the merchandise was not as warranted, and that the contract was never consummated, and demanded rescission and judgment on her counterclaim for the return of the part payment. Proof of the oral contract was admitted without objection. The jury found a verdict for defendant. Judgment of the County Court of Nassau county reversed on the law and the facts and a new trial ordered, with costs to appellants to abide the event. There is no proof that defendant at any time tendered the merchandise to plaintiffs, so that now she has the property, and the payments she made thereon have been returned to her. This is an illegal and unjust result regardless of the strange course the trial took by apparent assent of the parties, and there should be a new trial. Hagarty, Davis, Johnston, Taylor and Close, JJ., concur.  