
    LEVENTHAL v. BENJAMIN.
    (Supreme Court, Appellate Term.
    January 5, 1911.)
    Sales (§ 359)—Action fob Pbice—Evidence.
    In an action for the price of certain clothes, evidence held to sustain judgment for plaintiff.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. § 1056; Dec. Dig. & 359.'*]
    Appeal from Municipal Court, Borough of Manhattan, Seventh ■District.
    Action by Cornelius Leventhal against Alfred N. Benjamin. Erom a Municipal Court judgment dismissing the complaint, plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.
    Hoerner & Miller, for appellant.
    Philip C. Samuels (Hyman I. Barnett, of counsel), for respondent.
    
      
       For other cases see same topic <6 § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GIEGERICH, J.

The complaint in this action was dismissed at the close of the plaintiff’s case. The action was brought to recover the sum of $100, being the agreed price of a dress suit and a tuxedo coat, made for and delivered to the defendant. The agreed price, the making, and delivery to the defendant was proven by the testimony of the plaintiff’s manager, who testified to being present when the defendant was measured for the garments, heard the price therefor fixed at $100, and who subsequently delivered the garments to the defendant. The plaintiff was also sworn, but his memory as to some conversation as to which he was interrogated seems to have been faulty. It also appeared that for some reason not shown the garments were in the plaintiff’s possession at the time of the trial. Neither of these, last-named circumstances, however, authorized a dismissal of the complaint. The plaintiff, by the testimony of his manager, made out a complete cause of action, and the defendant should have been put to his defense.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All co°ncur.  