Opinion
June, 1936.
In an action to recover damages for breach of contract, order dismissing complaint at the close of plaintiff's case and judgment entered thereon reversed on the law and a new trial granted, costs to appellant to abide the event. Plaintiff proved facts sufficient to constitute a cause of action, there being proof that the parties had accepted and acted upon a modification of the contract, so that plaintiff was justified in selling ice to "loaders." To the extent that the contract was so modified and acted upon, the question of such modification, not being in writing, is not involved. The contract was not assignable, but, even if it were, defendant was not relieved from its duty thereunder. The proof fell short of showing a novation. Lazansky, P.J., Carswell, Davis, Adel and Taylor, JJ., concur.