
    Sue E. Mack et al., Respondents, v. Ted Koss, Doing Business as Koss and Company, Appellant.
   In an action to recover damages for breach of contract, defendant appeals from a judgment of the Supreme Court, Kings County, entered May 31, 1972 in favor of plaintiff Sue Ellen Mack, after a nonjury trial. Judgment reversed, on the law, and new trial granted, with costs to appellant to abide the event. The appeal did not present questions of fact. On December 14, 1967 defendant, a stockbroker, sold 400 shares of stock for plaintiff Sue Ellen Mack and thereafter paid the proceeds to a third party instead of to her. She and her husband sued for the proceeds. In an attempt to show that the plaintiff husband, acting as his wife’s agent, had orally authorized payment to the third party, defendant sought to read in evidence portions of the depositions given by plaintiffs in examinations before trial and also to elicit testimony from a witness as to a conversation he had overheard between defendant and the plaintiff husband on the day of the sale. The trial court refused to allow that in evidence and, in our opinion, this was error requiring a new trial. Shapiro, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.  