
    Martin Ross Manufacturing Corporation, Respondent, v. Frank Ulius, Doing Business as Manufacturers Supply Company, Appellant.
    Supreme Court, Appellate Term, First Department,
    June 3, 1944.
    
      
      Joseph W. Gemardi for appellant.
    
      Irving 1. Sternberg for respondent.
   Opinion

Per Curiam.

The court committed error in sustaining plaintiff’s objection to the offer of evidence by the defendant that he could not comply with the terms of the agreement entered into between the parties because of priorities which had been established by the War Production Board, pursuant to Public Law Mo. 89 of the 77th Congress, 1st Session, as amended (Second War Powers Act, 1942, § 301; U. S. Code, tit. 50, Appendix, § 633). Although there was no priority rating on the goods which plaintiff purchased from the defendant, the latter could not fill the farmer’s order since he was required by the regulations of the War Production Board to accept defense orders and all other orders bearing preference ratings and to give such orders preference over any other contracts or orders even if acceptance rendered impossible, or resulted in deferment of, deliveries or performance under previously accepted orders bearing no preference ratings (Regulations of War Production Board, § 944.2; 8 Fed. Reg. 6417).

Upon the new trial ordered herein, plaintiff may show by competent proof, as an element of damage, that it was required to pay brokerage commissions in order to obtain the merchandise from another source which the defendant had agreed to deliver.

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

Concur: Shientag, McLaughlin and Hecht, JJ.  