
    Edward B. Gibson, Resp’t, v. Patrick Donnelly, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    Pleading—Counterclaim—Acquiescence in change oe place oe delivery.
    In an action to recover for milk sold and delivered, a counterclaim was interposed that the milk was delivered at a place other than that specified hy the contract. It was shown that the defendant never objected to this and that for a long period he received the milk at the substituted locality without objection. Held, that defendant must be deemed to have acquiesced in the change and that his counterclaim was untenable.
    Appeal'from judgment of the general term of the city court, affirming a judgment on a verdict, and from an order affirming an order denying a new trial. Action to recover the agreed price of milk sold and delivered. The defense was of affirmative matter presented as four several counterclaims.
    
      D. Edgar Anthony, for app’lt; Charles C. Burlingham, for resp’t.
   Pryor, J.

In respect of cormterclaims three and four, it suffices to say that, since it is not apparent that the case contains all the evidence, we are precluded from the inquiry whether the proof was sufficient to sustain the verdict Upon the evidence as given, however, the determination of the jury is not without adequate support.

The first two counterclaims were rejected by the court as being invalid in point of law; and whether this ruling be tenable is the only question before us.

These counterclaims stood upon a common ground, namely, that the plaintiff had contracted to deliver at a certain place; that, instead, he delivered at another place; and that by consequence the defendant sustained loss and expense. But the defendant never objected to this implied modification of the agreement; on the contrary, without a murmur, he continued daily to receive the milk at the substituted locality for a period of five months, and even renewed the contract for another year with a silent acquiescence in its changed conditions. The court below rightly held the appellant to an implied assent to a modification of the agreement. His contention that the change in the contract is invalid for want of consideration is plainly untenable. Tallman v. Earle, 37 N. Y. State Rep., 271.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.  