
    Charles B. DeKlyn, App’lt, v. The Silver Lake Ice Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    Contract—Rescission.
    Where a contract for the sale and delivery of goods has been rescinded, proof of subsequent deliveries cannot have the effect of reinstating it.
    Appeal from judgment entered upon a dismissal of the complaint at the trial.
    
      H •Morrison, for app’lt; Wallace Macfarlane, for resp’t.
   Freedman, J.

The evidence given at the trial established that the contract upon was brought ed by the letters of March 5th and March 15th, and consequently no action can be maintained upon it by either party. The claim of the plaintiff that the letter of March 5th should be treated as a mere brutum fulmen, cannot be sustained. There having been a rescission, proof of deliveries of ice subsequent to March 17th could not have the effect of reinstating the contract. Such deliveries may have been made at market rates as proposed by the letter of March 5th, but it was not necessary to determine the precise point. The letters excluded are not printed in the case and consequently it cannot be held that their exclusion on the ground of immateriality constituted error. Upon the whole case no sufficient reason appears for disturbing the judgment The judgment should be affirmed, with costs.

Sedgwick, Oh. J., concurs; Freedman, J., concurs in the result.  