
    Jacob A. Stein, Gail A. McLoury and David H. Eisner, Appellants, v. Annie L. La Plante, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1918.)
    Contracts — rescission of — actions upon — evidence — acceptance.
    Where an order for certain feathers is divided into sections, each designated by a separate and distinct style number, white, black and colored feathers being included in each section, and in an action to recover the balance due it appears that defendant while rejecting some because they did not correspond with the sample in that they were imperfectly dyed retained part of those enumerated in each of the four sections, it must be held as matter of law that she accepted the entire shipment.
    Appeal by plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the defendant.
    Williams, Folsom & Strouse (Arthur D. Fisher, of counsel), for appellants.
    Mullen & Bloch (John A. Mullen, of counsel), for respondent.
   Philbin, J.

The plaintiffs sue to recover a balance alleged to be due on a sale of certain white, black and colored ostrich feathers, to the defendant. On the trial there was no question as to the making of the contract and the delivery of the goods. The defendant retained the white feathers, but rejected the others, because she claims such others were not'in accordance with sample, in that they were imperfectly dyed. On this question of fact, it seems there is sufficient evidence to support a finding in defendant’s favor.

The question of law arises, however, as to the right of the defendant to accept the white feathers and rescind the contract as .to the others by rejecting them. It is insisted by the appellants that defendant was obliged to accept or reject the shipment as a whole; that, having accepted part, defendant is deemed to have accepted all. This is the rule where the shipment is of goods covered by a single indivisible contract. Brukenfeld v. Silver, 165 N. Y. Supp. 418; Mendetz v. Wood Co., 86 Misc. Rep. 52; Simon v. Wood, 17 id. 607.

The order in evidence is divided into four sections, each designated by a separate and distinct style number. White, black and colored feathers are included in each section. It might not be error to hold that each section of the order is the basis of a separate contract. That, however, would not help the defendant, for, in retaining all the white feathers, she retained part of those enumerated in each of the four sections. It must, therefore, be held on the present record that defendant, as a matter of law, accepted the entire shipment.

Guy and Delehanty, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  