
    KHOURI v. ELKHOURI.
    (Supreme Court, Appellate Term.
    June, 1907.)
    Appeal from Municipal Court, Borough of Manhattan, First District. Action by Peter Khouri against Eddy S. Elkhouri. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Adolphus D. Pape, for appellant. Warner & Williams, for respondent.
   PER CURIAM.

The pleadings were oral. The summons stated a cause of action for goods sold and delivered. Upon the trial the plaintiff testified to certain accounts, which he had with the defendant, and the court declared that it “would take the proof and amend.the pleadings to conform." The testimony is so" confused and indefinite that it is impossible to determine with ’certainty exactly what the plaintiff’s claim is. Considering all the items upon which he claims to recover, we do not find that they aggregate more than $229.21. Notwithstanding this fact, the trial justice awarded judgment for the plaintiff for $254.90. In view of the confused condition of the testimony "of the plaintiff, we are not satisfied that he has proved any cause of action. Justice, therefore, requires that a new trial should be had. Upon another trial the-plaintiff’s counsel may be able to present the testimony so that the record will at least disclose accurately what the plaintiff’s claim is. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.  