
    Frank E. Rosen, Respondent, v. Jacob Silverman, Appellant.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Oourt of the city of New York, fourth district, borough of Manhattan.
    C. S. Rosenthal, for appellant.
    A. I. Spiro, for respondent.
   Per Curiam.

Granting the power of the court below to grant the motion of the plaintiff’s counsel," after resting his case and over the defendant’s objection and exception, to change the cause of action from a sale and delivery of- merchandise to one for dam-1 ages for the breach of a contract for the sale and delivery of personalty, that will not uphold a judgment given for the purchasej' price. Such measure of damages is manifestly inaccurate, enabling the plaintiff to recover the price and retain the property.! The correct measure of damage is the difference between the con-' tract price and the value of the property at the time of the breach.

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

Present: Scott, P. J., Beach and Fitzgerald, JJ.

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