
    Morris Riessen, Respondent, v. Samuel Pusateri, Sometimes Known or Called Samuel Rinelli, and Others, Copartners, Doing Business under the Firm Name and Style of “ Samuel Rinelli,” Appellants.
    Fourth Department,
    May 21, 1930.
    
      Mortimer A. Federspiel [Carlton E. Ladd of counsel], for the appellants.
    
      James O. Moore, for the respondent.
   Per Curiam.

The jury was justified in finding that the contract between the parties was for the sale of 5,076 bushels of Baldwin, New York, apples, United States No. 2, two and one-quarter inches up, and not for ungra ded apples, as claimed by the defendants. There is also ample evidence to warrant the finding that, on April 17, 1928, when these apples were inspected by the inspector of the Department of Agriculture, they failed to meet the requirements of the grade called for by the contract. The sale of the apples, however, was made on March 2,1928, and we think that the evidence is insufficient to warrant a finding that the apples at that time were in the same condition that they were on April 17, 1928. It was a part of plaintiff’s case to show that the apples were not as represented at the time of the sale, and unless there is evidence sufficient to warrant such a finding, the judgment cannot be sustained. Because of the lack of such evidence, we think that the judgment should be reversed and a new trial granted.

All concur, except Thompson, J., who dissents and votes for affirmance. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event.  