This action was instituted under the following circumstances. The plaintiff was the owner of a cigar store situated in the city of New York, of which he made a bill of sale to the defendant for a consideration of $249. to be paid partly in *304merchandise and partly by the extinguishment of an antecedent debt. Simultaneously with the execution of the bill of sale the defendant executed an agreement in writing by the terms of which he agreed to deliver to the plaintiff leaf tobacco to the amount of $200, in two parts; the first of the installments of leaf tobacco was received by the plaintiff on July 25, 1900, and returned by him to the defendant the succeeding day, as being defective in quality. There was a conflict of evidence regarding the quality of the tobacco furnished, but, upon an examination of the testimony submitted, we are not inclined to disturb the finding of the trial court. The defendant’s motion for a dismissal of the complaint upon the ground that the action was prematurely brought was properly denied. The contract of sale was entire and the refusal of the buyer to accept one of the installments constituted such a breach as gave the seller a right to rescind. Pope v. Porter, 102 N. Y. 366; Catlin v. Tobias, 26 id. 217; Van Sickle v. Nester, 34 Hun, 64.
Present: Scott, P. J., Beach and Fitzgerald, JJ.
Judgment affirmed, with costs.