
    MARTIN, Respondent, v. HOROWITZ, Appellant.
    (Supreme Court, Appellate Term.
    April 24, 1906.)
    Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Thomas F. Martin against David Horowitz. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Bernard Ginzberg, for appellant. Feeney & Kornblue, for respondent.
   PER CURIAM.

Declaring upon an account stated for newspapers sold to defendant, the plaintiff proved certain dealings with one Schwartz, who, it is claimed, had transferred his business to the defendant; but there was an absolute failure of proof that any bill or bills for the amount in suit had ever been rendered to the defendant, and the only suggestion of the rendering of a statement of even the gross amount claimed to be due is contained in the testimony of the plaintiff’s witness that the defendant promptly repudiated the asserted debt. There is nothing to indicate that the parties consented to the substitution of an issue arising out of a claim for goods sold and delivered; but, assuming the substitution, there was no prima facie proof of the price or value of the goods. Judgment reversed,- and a new trial ordered, with costs to the appellant to abide the event.  