
    Frederick Neff, Respondent, v. Benus Klepfer et al., Appellants.
    (New York Common Pleas—Additional General Term,
    June, 1895.1
    In an action to recover for boxes manufactured and kept on hand for defendants’ use, the defendants testified, and plaintiff’s principal witness admitted, that the agreement was that if plaintiff would keep a certain amount of boxes on hand defendants would give him orders for them. Held, that plaintiff’s only cause of action was for a breach of such agreement, and that a judgment in his favor was against the weight of evidence.
    Appeal from a judgment of the District Court in the city of New York for the first judicial district.
    
      M. H. Regensburger, for appellant.
    
      Henry Schmitt, for respondent.
   Bookstaver, J.

Plaintiff sued upon an alleged contract with defendants, by which it was agreed that he should make and keep on hand for their use, a certain number of paper boxes, for which the defendants contributed certain labels. The defendants contend that they agreed to give their trade to the plaintiff if he would keep a sufficient stock on hand to insure a prompt delivery of their orders. We think that this contention is upheld by the weight of the evidence. Hot only did defendants testify that this was the agreement, but plaintiff’s principal witness, when asked on cross-examination: “ Q. The conversation you had, you say, was that if Heff & Co. would keep on hand a certain amount of these boxes, Klopfer would give you orders ? A. The prices being right.” And further: Q. Is that so? A. Yes, sir, I had that impression. Q. You don’t want to correct it? A. Ho.”

It will, therefore, be seen that if plaintiff has any cause of action against the defendants it is for a breach of this contract, and not for “ goods manufactured and sold at defendants’ request.”

The judgment must, therefore, be reversed as against the weight of the evidence. Brown v. Sullivan, 1 Misc. Rep. 161.

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

Bischoff, J., concurs.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  