
    FRIEDMAN et al. v. LEDERER.
    (Supreme Court, Appellate Term.
    February 8, 1912.)
    Sales (§ 181)—Action for Price—Burden of Proof—Conformity to Sample.
    In an action for the price of goods, the burden is not on the buyer to show that they did not come up to the sample by which they were sold.
    [Ed. Note.—For other cases, see Sales, Dec. Dig. § 181.*]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by Fannie Friedman and another against Hugo L. Lederer. From a judgment for plaintiffs, and from an order refusing a new trial, defendant appeals.
    Reversed, and new trial ordered.
    Argued January term, 1912, before SEABURY, GERARD, and HOTCHKISS, JJ.
    Thomas F. Kane, for appellant.
    Samuel Kahan, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GERARD, J.

The complaint alleges a cause of action for the purchase price of certain goods, alleged to have been sold and delivered by plaintiffs to defendant, and which consisted of 60 dresses. The sale was by sample. This was conceded, and the order was for “sixty (60) dresses like sample—blue.” The trial court charged the jury that the burden of proof was on the defendant to show that the goods did not come up to sample. This was error, which materially injured defendant. Rosenstein v. Casein Mfg. Co., 50 Misc. Rep. 345, 347, 98 N. Y. Supp. 645.

Because of this error the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  