E. D. Smith, J.
The contract of sale in this case being by parol, and no part of the purchase-money actually paid by the vendee at the time of the purchase, the question presented, and the only one in this case is, whether the contract was taken out of the statute by the delivery and acceptance of the sheep sold.
In Shindler v. Houston, 1 N. Y. 261, which is a leading case in this State upon the question, it was held that to constitute a delivery and acceptance of the goods such as the statute requires some thing more than mere words is necessary. Superadded to the language of the contract, there must be some act of the parties, amounting to a transfer of the possession and an acceptance thereof by the buyer.
The rule of this case, it seems to me, was properly applied on the trial of this cause. The judge advised the jury that the contract was void under the statute, unless there was a delivery and acceptance of the sheep at the time of the bargain. The evidence, I think, clearly warranted the jury in finding such delivery and acceptance. The sheep were selected and separated from the rest of defendant’s flock, and the plaintiffs’ mark put upon them, and then, after such separation, it was agreed to let them run with the defendant’s sheep for a few days.
The whole question in respect to the acts of the parties relating to this question of the delivery and acceptance of the sheep was fairly submitted to the jury, and their verdict, I think, cannot properly be disturbed.
No error, I think, occurred on the trial, and the order denying the motion for a new trial should be affirmed.
Order affirmed.