
    DE GROFF, Appellant, v. WALDEN CO., Respondent.
    (Supreme Oourt, Appellate Term.
    March 12, 1906.)
    Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Arthur H. De Groff against the Walden Company. From a judgment for defendant, plaintiff appeals.
    Reversed.
    Bohannon & Ilonnecker, for appellant.
    William J. Bolger, for respondent.
   PER CURIAM.

The judgment in this case was evidently predicated upon a finding that a trade custom existed in New York with reference to a pro rata delivery of peaches, when performance was rendered impossible hy reason of the failure of the peach crop. In our opinion there was not sufficient evidence to warrant the court in injecting into the written contract which existed between the parties tbe custom referred to. It seems to us that upon a new trial the testimony bearing upon the question of damages should be based upon the rule stated in Todd v. Gamble, 148 N. Y. 382, 42 N. E. 982, 52 L. R. A. 225. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.  