(dissenting). It seems to me to be quite unimportant whether or not defendant notified plaintiff of the nonacceptance of the goods by the consignee. The crucial fact in the case is that within thirty days of the shipment the defendant tendered back the goods to the plaintiff and he absolutely refused to receive them. There was some evidence that the package or wrapping paper containing the goods was torn and' damaged, but this was no evidence of a total loss. On the contrary the plaintiff’s evidence showed very clearly that the loss was but partial. Under these circumstances the plaintiff was not justified in refusing absolutely to accept the goods, but should have received them and sued for the loss, if any. Brand v. Weir, 27 Misc. Rep. 212, and cases cited.
Judgment should be reversed and new trial granted, with costs to appellant to abide the event.
Judgment affirmed, with costs.