
    Caesar Francini, Respondent, v. B. A. & G. N. Williams, Inc., Appellant.
    First Department,
    February 7, 1936.
    
      
      Joseph A. Nickerson of counsel [Stanley D. Brown with him on the brief; Sackett, Chapman, Brown & Cross, attorneys], for the appellant.
    
      Jay J. Lehrman of counsel [Charles Schlam, attorney], for the respondent.
   Per Curiam.

The contract, as alleged, if established, is not within the Statute of Frauds. (Pers. Prop. Law, § 85, subd. 2, added by Laws of 1911, chap. 571.) The judgment, however, should be reversed because there was a failure of proof of special damages in that it was never shown that defendant agreed to furnish marble different from its sample and conforming to the modified specifications of the architect, or that the run of Dover marble in the market did conform to such modified specifications. There were also prejudicial errors in the charge which need not be commented on because they are not likely to recur on a new trial.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide event.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.  