
    HIRSCHBERG v. MARX et al.
    (Supreme-Court, Appellate Term.
    June 22, 1905.)
    Sales—Actions—Issues—Tender.
    Where plaintiff sued to recover for lumber sold on terms of a three- ■ months note, or 2 per cent, discount for cash within 10 days, and defendant failed to plead such terms, he was not entitled to prove a tender of the note. °
    Appeal from City Court of New York, Special Term.
    Action by Heinrich Hirschberg against Louis Marx and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    See 74 N. Y. Supp. 1131.
    Argued before SCOTT, P. J., and DUGRO and MacLEAN, JJ.
    Abraham H. Sarasohn, for appellant.
    Hansen, Zinsser & Power, for respondent.
   MacLEAN, J.

The plaintiff suing for lumber sold and delivered upon terms, viz., a “three months note or 2% discount for cash within ten days,” and the learned referee having so found the fact to be, the direction of judgment in favor of the plaintiff should be affirmed, for, failing so to plead, it was not error to reject the offer of the defendant Jacobson to prove' a tender of such note. Sidenberg v. Ely, 90 N. Y. 257, 266, 43 Am. Rep. 163.

Judgment affirmed, with costs. All concur;  