
    Theodore Krug, Respondent, v. G. Elias & Brother, Inc., Appellant.
    
      Contract — sale —• action to recover for alleged breach of contract to purchase goods.
    
    
      Krug v. Elias & Brother, Inc., 217 App. Div. 783, affirmed.
    (Argued January 24, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 29, 1926, reversing a judgment in favor of plaintiff entered upon a verdict directed, on motion of defendant, for but a small part of plaintiff’s claim and granting a new trial. The action was to recover for an alleged breach of a written contract to purchase gun-stocks. The sale was by sample. The defendant subsequent to the making of the contract examined the stock, obtained other samples and took possession of a number. The Appellate Division held that there was evidence from which the jury might have found that there were enough others of the same general shape and quality to enable plaintiff to make complete delivery of the number defendant agreed to purchase, and that as to minor variances there had been waiver .of objections.
    
      James M. H. Wallace, Cleveland Pond and Joseph Swart for appellant.
    
      W. C. Carroll for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ.  