
    BROWN et al. v. GROSSMAN et al.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1908.)
    1. Evidence (§ 315*)—Heabsay—Admissibility.
    Testimony by a vendor as to1 the quantity of goods sold, he testifying from what he was told by his salesman and having no personal knowledge thereof, was hearsay, and inadmissible.
    [Ed. Note.—For other cases, see Evidence, Gent. Dig. § 1179; Dec. Dig. § 315.*]
    2. Sales (§ 359*)—Action eoe Bub chase Pbice—Evidence—Sufficiency.
    In an action for the price of goods claimed to have been ordered by defendants and delivered to a third party, evidence held insufficient to show that the order covered the goods sued for.
    [Ed. Note.—For other cases, see Sales, Dec. Dig. § 359.*]
    *For other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
      3. Tbial (§ 165*)—Dismissal—1Time—Dismissal After Verdict.
    •For other cases see same topic & § numbbk in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    Where the trial judge erroneously submitted the case to the jury, instead oí directing a verdict for defendant, and the jury found for plaintiff, the judge could not thereafter dismiss the complaint on the merits, but could only set the verdict aside and order a new trial.
    [Ed. Note.—-For other cases, see Trial, Dec. Dig. § 165.*]
    Appeal from Appellate Term.
    Action by Louis Brown and another against Fannie Grossman and another. From a judgment of the Appellate Term (108 N. Y. Supp. 653), reversing an order and judgment of the City Court setting aside a verdict for plaintiffs and dismissing the complaint on the merits, defendants, by permission, appealed. Judgment of Appellate Term reversed, and judgment of City Court modified, by granting a new trial.
    See, also, 109 N. Y. Supp. 670.
    Argued before PATTERSON, P. J., and McLAUGPILIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
    Harvey C. Price, for appellants.
    I. Gainsberg, for respondents.
   McLAUGHLIN, J.

This action was brought in the City Court to recover a balance alleged to be due for goods sold and delivered. The plaintiffs had a verdict for the full amount claimed, which the trial judge set aside and dismissed the complaint on the merits. The plaintiffs thereupon appealed to the Appellate Term, which reversed the order and judgment of the City Court and reinstated the verdict. The defendants, by permission, then appealed to this court. The answer put in issue the material allegations of the complaint.

The plaintiffs’ contention was that the goods for which the balance was sought to be recovered were ordered by the defendants and by their direction delivered to a third party. The evidence to establish this fact consisted mainly in a written order, coneededly made by the defendants, which reads as follows:

“New York, Jan. 7, 1907.
“Messrs. Brown and Taub—Dear Sirs: Kindly deliver to Freirich & Santman the goods they ordered on our account, and oblige.
“Respectfully yours, Grossman & Hecht.”

On the day this order was written one case of goods was delivered by the plaintiffs to Freirich & Santman, and the question presented is whether this order covered other goods which were delivered between that date and February 13th following. If it did not, then the plaintiffs were not entitled to recover, because no claim is made that the first case of goods delivered was not paid for.

There is absolutely no evidence in the case which would justify a finding that any goods were delivered to Freirich & Santman by direction of the defendants, except one case which was ordered on the 7th of January, the date of the order above quoted. The witness Sarasohn, plaintiffs’ salesman, testified that Freirich & Santman, on the 7th of January, 1907, gave him an order for one case of goods; that he took it, before delivering the goods, to Brown, one of the plaintiffs, who said he-did not care to sell Freirich & Santman, and thereupon the salesman went back to Santman and told him what Brown had said. Freirich & Santman occupied offices with the defendants, who, on being informed that plaintiffs wanted them to guarantee the account, gave to the salesman the order above quoted, and one case of goods was thereafter delivered on that day. Sarasohn further testified, on cross-examination, that the order that Freirich & Santman gave him on the 7th of January was for one case, and he was then told “to send one case, and then he would let me know when again” ; that he “had not a certain order then”—that is, when he first talked with one of the plaintiffs—but later in the day, when he went back to Freirich & Santman, he got a specific order, which was “to send one case and he" would let us know for the balance.”

Brown, one of the plaintiffs, testified that the order was for from three to five cases, but only one case was delivered on the 7th of January; that all he knew about the order was what Sarasohn had told him. The testimony of this witness was stricken out as hearsay, and properly so. All Brown knew about the transaction is what Sarasohn told him, and his testimony clearly shows, taken in connection with the written order, that all the defendants obligated themselves to do was to pay for what goods had then been ordered. These goods had been paid for when the action was brought. There was, therefore, no evidence to sustain the verdict of the jury, and for that reason the trial judge properly set it aside. He should, at the close of plaintiffs’ case, have granted defendants’ motion and dismissed the complaint, and at the close of the trial should have granted defendants’ motion and directed a verdict in their favor. He, however, denied both motions and sent the case to the jury. When the motion was made to dismiss the complaint, or for the direction of a verdict, he could, pending the decision of such motion, submit any question of fact raised by the pleadings to the jury, or require it to assess the damages, and then, after it had rendered a special verdict upon such submission, or assessed the damages, he could pass upon the motion, either to dismiss the complaint or direct such general verdict as either party was entitled to. Section 1187, Code of Civil Procedure. This he did not do. He denied the motions, holding, as we think erroneously, that there were questions of fact to be submitted to the jury; and, it having found for the plaintiffs, all he could do was to set the verdict aside and order a new trial. He could not dismiss the complaint on the merits.

It follows that the determination of the Appellate Term should be . reversed, and the judgment of the City Court modified, by granting a new trial, with costs to the defendants in this- court and in the Appellate Term. All concur. '  