
    A. Sulka & Company, Respondent, v. Herman Brandt, Appellant.
    Supreme Court, Appellate Term, First Department,
    February 14, 1935.
    
      Leon Kauffman, for the appellant.
    
      Morris J. Mayer, for the respondent.
   Per Curiam.

Plaintiff sold certain goods to defendant in Paris, France, the purchase price being expressed in francs. It sued here and has recovered judgment in dollars for the value of the unpaid francs at the rate of exchange prevailing at the date of judgment. This is error. The judgment should have been based on the rate of exchange prevailing as of the date of the breach of the contract, in the absence of special circumstances showing such rule to be inappropriate. (Kantor v. Aristo Hosiery Co., Inc., 222 App. Div. 502; affd., 248 N. Y. 630; Sokoloff v. National City Bank, 250 id. 69.) The mere circumstance that the fluctuation of exchange went against the plaintiff would not seem to justify a departure from this rule.

In addition, there appears to be an issue of fact as to whether the terms of sale permitted the defendant to pay in francs or dollars at his option.

Judgment and order reversed, with ten dollars costs to appellant to abide the event, and motion denied.

All concur; present, Hammer, Callahan and Shientag, JJ.  