
    AUERBACH, Appellant, v. PEASE OIL CO., Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    January 31, 1912.)
    Action by Paul E. Auerbach against the Pease Oil Company.
   PER CURIAM.

Judgment affirmed, with costs.

McLENNAN, P. j.,

dissents, upon the ground that upon the trial the plaintiff waived the fraud alleged, and the case then proceeded as one upon contract, and that there was an implied warranty that the engine sold was a new one.  