
    Benjamin M. Schwartz, Appellant, v. Morris & Company, Respondent.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Damages — Particular contracts and relations — Contracts for sale or purchase of goods — Breach by seller — Where no market exists.
    The rule that the measure of damages, in an action by the vendee against the vendor for breach of a contract to sell and deliver goods, is the difference between the contract price and the market price of the goods at the time and place of delivery is not applicable to a sale of merchandise as to which there is no market; and, when there is a conflict of testimony as to the fact of the existence of a market for the merchandise in question, it is error for the trial court to refuse to submit that question to the jury.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the end of the defendant’s case.
    Leon Laski, for appellant.
    William F. Byrne, for respondent.
   Hendrick, J.

The plaintiff established a prima facie case. His testimony, that he tried to buy livers in the open market and found that none could be had, took the measure of damages out of the general rule. It became a question then as to whether there was or was not a market for livers. On that point there was a conflict of testimony, and it was for the jury and not for the court to determine the fact. The trial court erred in dismissing the plaintiff’s complaint at the end of the defendant’s case, and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich and Ford, JJ., concur.

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