Opinion
February, 1906.
Schleimer Schleimer (Max Schleimer, of counsel), for appellant.
Henry Bloch, for respondents.
There seems to have been sufficient testimony, introduced without objection, tending to show that the gas ranges, the subject of this action, were the property of the Northern Union Gas Company at the time they were agreed to be conveyed to the plaintiff by the defendants, which agreement was afterward consummated. Upon the question of merger of the contract made between the parties, in the subsequent warranty deed given by the defendants, this court in the case of Wynne v. Friedman, 49 Misc. Rep. 616, held, upon a similar state of facts, that no merger took place and a judgment for the value of the ranges was affirmed.
Present: SCOTT, GIEGERICH and GREENBAUM, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.