At the close of the plaintiff’s case a motion was made by the counsel for the defendant to dismiss the complaint, which was granted without further remark by the trial justice. No grounds whatever were specified for the motion, nor was any reason therefor given by the trial justice in announcing his decision. "We are, therefore, bound to consider all the evidence in the case in a manner and from a standpoint most favorable to the support of the plaintiff’s claim, and to uphold the decision of the trial court only where it is apparent that the plaintiff’s case is utterly destitute of any legal foundation.
Taking the contract as it was testified to by the plaintiff and his witnesses, we are of opinion that the transaction between the plaintiff and the defendant" was a sale, with the right, however, on the part of the defendant to terminate the contract in whole or in part by a return of the goods within a specified time. Such a transaction has been defined to be a conditional sale, and if the right of return is not duly exercised and the property is retained after the time specified or after the lapse of a reasonable time, if no time is specified, the right is forfeited and the sale becomes absolute like any other sale. Costello v. Herbst, 18 Misc. Rep. 176. In the case at bar the goods were not returned within the specified period, and the plaintiff had a right to bring his action, as for goods sold and delivered for the recovery of the price *727which had been agreed upon between the parties. The trial court, therefore, erred in dismissing the complaint, and a new trial should be ordered.
Present: Beekman, P. J., Giegerich and O’Gorman, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.