
    Henry W. A. Lehnert, Doing Business as Lehnert & Co., Plaintiff, Respondent, v. Jacob Efron, Defendant, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 18, 1924.
    Trial — verdict — action to recover agreed price of certain plumbing fixtures delivered by plaintiff to defendant — • testimony presented fair question of fact for jury — reversible error to direct verdict under Civil Practice Act, § 467-a.
    In an action for the agreed price of certain plumbing fixtures sold by the plaintiff to the defendant, it was reversible error for the trial court to order a directed verdict pursuant to section 457-a of the Civil Practice Act, where the testimony of both parties, adduced from reputable witnesses, as well as from the correspondence passing between the parties, presented a fair question of fact for the jury.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of plaintiff, entered upon a directed verdict.
    
      Reuben Dorfman, for the appellant.
    
      Zodikow & Wieder (JI. M. Zodikow, of counsel), for the respondent.
   Per Curiam.

This action was brought to recover the agreed price of certain plumbing fixtures delivered by plaintiff, a manufacturer, to defendant, a dealer, under the terms of a written contract. Although defendant was improperly prevented from shoving that under the custom of the trade this order is what is known as a blanket ” order, and also from showing what under the custom of the trade was a reasonable time to accept delivery of the entire order and the manner and circumstance under which delivery is asked and made, there was sufficient evidence on both sides to indicate that it was treated as such an order. Plaintiff claimed that defendant had broken the agreement in not paying for goods admittedly delivered under the order. Defendant claimed that plaintiff had broken the agreement in failing to deliver goods as ordered at the prices named in the contract and by plaintiff demanding a higher price.

The contentions of both sides were supported by testimony of reputable witnesses; and the exhibits, consisting largely of letters which passed between the parties, afford the basis for argument in support of either side. Under such circumstances, of course, the testimony presented a fair issue of fact to be submitted to the jury.

There is not, in our opinion, any foundation for a valid claim that the case falls within the provisions of section 457a of the Civil Practice Act, under which apparently the learned judge undertook to direct a verdict. There is, therefore, no necessity of passing on the constitutionality of that section, which is discussed in plaintiff’s brief at some length.

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

All concur; present, Guy, Bijur and Mullan, JJ.  