The plaintiff’s assignor, located at Newark, N. J., sold to the defendant, a corporation located at Houston, Tex., a quantity of rice bags. The sale was by sample. The order of the buyer which was accepted by the seller read as follows: “ Beplying accept sixty thousand twelve ounce rice pockets all to be bright clean free from holes, mends or patches at sixty seven dollars per thousand delivered Houston payment after receipt and examination.”
The bags were shipped and when they reached the buyer’s place of business it examined a part of them and then wrote the seller that they were not according to the sample, and stated “ we would much prefer not to use the bags,” and asked the seller to ship 60,000 of the quality sold. Thereafter, considerable correspondence took place, the seller insisting that the bags corresponded to the sample and the buyer insisting that they did not. Finally the seller wrote the buyer to sort the bags and to select those satisfactory to it and to pay for those selected and that shipping instructions would be given for those rejected. The buyer sorted 40,215 of the 49,600 bags *90 shipped and selected 14,215 as satisfactory and sent its check to the seller who accepted it. The buyer never sorted the balance of 9,446 bags.
This action is under snbd"vision 1 of section 144 of the Personal Property Law (Cons. Laws, ch. 41) to recover the purchase price of all the bags shipped less the sum of $791.90 paid for the sorted bags which the buyer paid for. The plaintiff as assignee of the seder has mistaken his remedy. The original contract was one of purchase and sale subject to the right of examination by the buyer. Under that contract the title to the bags passed to the buyer subject to a condition, the right of “ receipt and examination ” as provided in the contract. (Glass & Co. v. Misroch, 239 N. Y. 475.)
After examining a part of the bags the buyer objected to the quality of the goods. Whether its objection constituted a vadd rescission is immaterial in the view of the case which we take. The seder acquiesced in the position taken by the buyer and the parties entered into a new agreement to the effect that the buyer should examine ad of the bags, accept and pay for such as it selected and hold the balance for the seder. Pursuant to such new agreement the buyer selected and paid for part of the goods and the seder attempted to sell the balance to third parties. The effect of the agreement and the conduct of the seder was to vest the title of the goods in the seder. The fact that the buyer faded to examine the balance of the goods and select and pay for those which it considered equal to the sample did not have the effect of transferring the title of the goods to the buyer. An action cannot, therefore, be maintained for the purchase price under subdivision 1 of section 144 of the Personal Property Law.
Appedant has appealed from the whole judgment. A stipulation for judgment absolute in the event that this court should affirm the judgment which granted a new trial of the counterclaim was not given by the appel *91 lant as required by subdivision 2 of section 588 of the Civil Practice Act. The appeal having been taken as a matter of right, such a stipulation was necessary in order to give this court jurisdiction. (Gross & Son v. State of New York, 243 N. Y. 629.)
The judgment of the Appellate Division in so far as it dismisses the complaint should be affirmed, with costs, and the appeal from the order granting a new trial of the issues arising on the counterclaim dismissed.
Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.
Judgment accordingly.