Opinion
January 22, 1925.
Oscar Levine, for the appellant.
Thomas A. McKennell, for the respondents.
Judgment unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellant to abide the event.
The remarks of the trial court at the close of the case indicate that his decision in favor of the defendants was due to the fact that the plaintiff had not proved that his customer was able and willing to purchase on the terms claimed to have been agreed upon. This point had not been made by defendants at any time during the trial, and in fact no motion was made to dismiss the complaint. If defendants were willing to waive the necessity of such proof, the court might well have done so. Having raised the point, however, and having indicated that it was fatal to a recovery by plaintiff, the trial court should have granted plaintiff's application to be allowed to introduce proof to meet the objection. ( Klein v. Sarnoff, 83 Misc. 447; Champion Shoe Machinery Co. v. Landman, 97 id. 642; Asserson v. City of New York, 195 A.D. 12.)
Present: CROPSEY, LAZANSKY and MacCRATE, JJ.