Miller Bros. Hat Company, Appellant, v. A. D. Smith Sons Company, Respondent.
Contract — sale — action for breach of contract — erroneous dismissal of complaint — record, on appeal — practice of submitting photostatie copies of exhibits unaccompanied by printed copies condemned.
1. Upon examination of the record in this action, held, that the plaintiff made out a prima facie case of breach of contract for the sale of goods and on the facts the complaint should not have been dismissed but the jury should have been permitted to pass on the *571question whether the delivery of the samples was referable to the principal order and in recognition and part performance thereof.
2. The practice of submitting photostatic copies of exhibits unaccompanied by printed copies thereof is condemned and forbidden.
Miller Bros. Hat Co. v. Smith Sons Co., 206 App. Div. 444, reversed.
(Argued January 16, 1924;
decided February 19, 1924.)
Appeal from a judgment, entered November 13, 1923, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was brought for the recovery of damages for breach of an alleged contract to deliver merchandise. The complaint alleged that on or about July 2, 1919, the plaintiff and the defendant entered into a contract whereby the defendant was to sell the plaintiff 880 dozen men’s straw hats, in seven different styles, at an agreed price for each style, the total price of the purchase amounting to $14,575, the terms of payment being May 1, 1920, less a discount of seven per cent, delivery to be made of one dozen of each style within two weeks, and the balance to be delivered in or about the month of December, 1919. It was further alleged that between the 3d day of September, 1919, and the 21st day of October, 1919, the defendant did deliver one dozen of each style, for which the plaintiff paid, and that the defendant has failed to deliver the remainder. The answer was, in effect, a general denial, and also the separate defense of the Statute of Frauds.
Jay Leo Rothschild for appellant.
Sidney S. Bdbbe for respondent.
Per Curiam.
The plaintiff made out a prima jade case of breach of contract for the sale of goods. On the facts, the complaint should not have been dismissed, but the jury should have been permitted to pass on the question whether the delivery of the samples was referable to the principal order and in recognition and part performance thereof.
*572The practice of submitting photostatic copies of exhibits unaccompanied by printed copies thereof is condemned and a repetition of the offense will lead to the rejection of the record.
The judgment should be reversed and new trial granted, with costs to abide the event.
His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur; Lehman, J., not sitting.
Judgments reversed, etc.