
    DICKERSON, Respondent, v. WAYNE KRATZER & CO., Appellants.
    (Supreme Court, Appellate Term.
    February 27, 1906.)
    Appeal from City Court of New York, Special Term. Action by Edward N. Dickerson against Wayne Kratzer & Co. From a judgment for plaintiff, defendants appeal.
    Reversed.
    Henry S. J. Flynn, for appellants.
    Eugene N. Robinson, for respondent.
   SCOTT, P. J.

There is absolutely no proof of damage in the case. By the judgment appealed from the plaintiff would still own the automobile, for there is neither allegation nor proof of a sale to defendant, and would recover its full value from defendant. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

GREENBAUM, J.,

concurs.

GIEGERICH, J.

(dissenting). By guarantying that a certain price should be forthcoming to the plaintiff at a certain date, the defendant in effect agreed to become the purchaser of the machine at that price, if he found no one else to take it. By suing for and recovering judgment for the agreed price, the plaintiff has treated the transaction as a sale and the machine now belongs to the defendant.  