
    Thomas J. MacEvoy and Alden H. Weed, Respondents, v. Max Aronson, Appellant.
    (Supreme Court, Appellate Term,
    March, 1905.)
    Statute of Frauds — Sale of goods — Acceptance.
    An acceptance of a portion of goods delivered under an entire contract of sale is sufficient to take the contract out of the Statute of Frauds.
    Where, upon receipt of the first piece of goods delivered under an entire contract of sale by sample, the buyer sends it to an examiner for inspection, according to trade custom, the buyer is responsible for any unreasonable delay of his agent in examining and rejecting the goods.
    In such case, a delay from Nov. 20th to Dec. I2th is unreasonable, and where the weight of evidence is to .the eSect that the goods were equal to the sample and merchantable, there is a sufficient acceptance to take the transaction out of the Statute of Frauds.
    Appeal by the defendant from a judgment rendered in favor of the plaintiffs in the Municipal Court of the city of Mew York, eleventh district, borough of Manhattan.
    Herman G. Loew, for appellant.
    Stern, Singer & Barr, for respondents.
   Per Curiam.

Both parties claim, and, as we think, rightly, that the contract sued upon was an entire one. It follows that acceptance of a part of the goods is sufficient to take the contract out of the Statute of Frauds. Brock v. Knower, 37 Hun, 609. It was shown that the second shipment was refused by defendant, and the whole question turns upon whether or not the first shipment was accepted. The sale was by sample, and in such a case the law requires that the vendee shall examine the goods promptly and that he cannot unreasonably delay his rejection, if the goods be found not equal to the sample. If he proposes to repudiate the sale because it is claimed to be void under the Statute of Frauds his acceptance will be inferred from continued retention of the goods after receipt. It may he assumed that, the custom of the trade justified defendant in sending the first delivery to an examiner, hut that examiner was his agent and for his delay the defendant must he held responsible. The evidence shows that the first piece of goods was delivered on November twentieth, and no attempt was made to return them until December twelfth. The defense that the sale was void under the Statute of Frauds is evidently an afterthought, as well as the suggestion that the goods were ordered for instant delivery and were received too late. The attempted rejection of the goods was made on the specific ground that the goods were defective. Treating the sale as one by sample the evidence certainly shows an unreasonable delay in examining and rejecting the goods, and the weight of the evidence is to the effect that the goods were equal to sample and merchantable, with no more imperfections than according to trade customs should have been adjusted by an allowance. In our opinion the evidence showed sufficient acceptance to take the transaction out of the Statute of Frauds, and the defendant did not prove such defects in quality as would justify a repudiation of the contract on that ground.

Present: Scott, O’Gorman and Blanchard, JJ.

Judgment affirmed, with costs.  