¶1(dissenting.) Appeal from a judgment upon a verdict for the plaintiff, and from an order refusing a new trial. The suit was for the price of a lot of furniture made for defendants according to certain designs. The jury rendered the following verdict: They find a verdict for the plaintiff, and assess the damages at $439.94; plaintiff to retain three of the mahogany cabinets. The controversy was confined to six cabinets,—four mahogany and two walnut,—which defendants claimed were not made according to the contract. The addition to the general verdict is explanatory of and consistent with the preceding award set out in the verdict, and shows the jury’s intendment, and the way they arrived at the “result” expressed by their general verdict in money; and it is not a case like Herzberg v. Murray, 8 Jones & S. 272, where the jury assumed the powers of the court and went beyond the issue, and gave a judgment to be carried out. The said addition herein to the verdict is hence mere surplusage, that may be stricken out or disregarded. Richmond v. Tallmadge, 16 Johns. 307; Sayre v. Jewett, 12 Wend. 135; Wells v. Cox, 1 Daly, 516; Burhans v. Tibbits, 7 How. Pr. 21; Jones v. Insurance Co., 61 N. Y. 85, 86. But the verdict as .rendered shows, on its face, that the jury committed an error in computing the amount they intended to award to the plaintiff. They include $30 for one of the four mahogany cabinets returned as imperfect, whereof the jury declared three to have been properly returned; which three, therefore, must remain, they said, with the plaintiff. This fourth one was in law consequently also not chargeable against defendants, for the contract was entire as to each class of cabinets. The verdict is hence too large by $30, which should be remitted by plaintiff. Fash v. Ferry Co., 8 N. Y. St. Rep. 363, 367. The defendants, if dissatisfied, could return the goods, and plead a rescission of contract, to the extent of the goods not *486accepted. In executory contracts of sale of chattels, the unqualified retention of the property is an admission that the contract has been so far performed. Reed v. Randall, 29 N. Y. 358, 362, 363. The seller may recover for the portion delivered and accepted. Shields v. Pettee, 2 Sandf. 262, 267, 268; Howard v. Hoey, 23 Wend. 350. As defendants accepted none of the four mahogany cabinets, but returned them all, and the jury has found that the plaintiff failed to perform his contract with respect to the mahogany cabinets contracted for, no recovery could be-alio wed for any of the maliogany cabinets returned. As to the walnut cabinets, the jury found the contract to have been duly performed.
¶2The alleged counter-claim was without foundation. It is only where there was a “ warranty” of quality that the goods may either be retained, and cross-damages claimed, (i. e., under the warranty,) or (at buyer’s option) such goods as are imperfect be returned, and a rescission of the contract to that extent pleaded in a suit for the price of the goods. But even then such purchaser cannot, in the same action, stand both on the rescission of the contract pro tanto, by a-return of the goods, and also upon an averment claiming damages for breach of the warranty. These two positions are inconsistent in the same action, touching the same contract. Norton v. Dreyfuss, 106 N. Y. 91, 95, 12 N. E. Rep. 428. As there was no proof of any warranty of quality, there could be no counter-claim regarding the furniture not repudiated, and returned, or offered to be returned, or as to any of the goods. Upon a remission by plaintiff of $30, for the reasons stated, the verdict may be sustained. 8 y. Y. St. Rep. 363, 367, supra. The judgment and order denying a new trial should be reversed, and a new trial ordered, with costs to abide the event; unless within six days the plaintiff stipulate to reduce his recovery of damages to $409.94, besides the costs taxed, in which case the judgment, as modified, will be affirmed, without costs.