
    FIXEL v. MARKS et al.
    (Supreme Court, Appellate Term, First Department.
    November 8, 1912.)
    Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Rudolph Fixel against Samuel Marks and others. Judgment for plaintiff, and defendants appeal. Reversed, unless a remittitur is accepted. Samuel D. Shwitzer, of New York City, for appellants. Isaac Josephson, of New York City, for respondent.
   BIJUR, J.

This. suit was brought by the plaintiff, purchaser, for damages caused by nondelivery by defendants of 3,734 pounds of mushrooms at the agreed price of 57% cents per pound during the month of October, 1911. The learned judge below awarded the plaintiff $350 damages, thus indicating that the market price during the month of delivery was approximately 67 cents. The testimony, however, does not, on the whole, sustain a finding that it was so high. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event, unless plaintiff will stipulate to accept $175, in which case the judgment will be reduced to that amount, and, as so modified, affirmed, without costs or the appeal to either party. All 'concur.  