
    Benjamin Friedman, Appellant, v. The Marine Manufacturing and Supply Company, Respondent.
    (No. 1.)
    Second Department,
    November 23, 1910.
    Sale — action to recover value for portion of goods sold — evidence.— erroneous dismissal of complaint — appeal —nonsuit at close of plaintiff’s case. . "
    Whether or no a contract for the sale of goods be entire or-divisible, it is error to dismiss the complaint in an action brought to recover for a portion of the goods if the plaintiff has testified that he delivered all the goods'covered by the contract, merely because the ■ defendant shows that some of the articles were returned to the plaintiff because the defendant’s customer refused to accept them, where there is no prooí that the articles did not accord with the specifications or that there was an agreement that they were delivered subject to the approval of the defendant’s customer. ' ' . .
    Where a complaint is dismissed at the close of the plaintiff’s case he is entitled to every fair intendment which may arise from his proof.
    Bure, j., dissented.
    Appeal by the plaintiff, Benjamin Friédman, from a judgment of the Municipal Court of the city, of New York, borough of Brooklyn, in favor of the defendant, rendered on the 29th day of June, 1910, dismissing the complaint without prejudice.
    
      David T. -Smith, for the appellant.-
    
      Albert W. Seaman,, for the respondent.
   Per Curiam :

This action was for goods sold and delivered, to wit,- twenty-five kedge anchors at the price of six cents a pound, aggregating -in amount the suni of fifty-four dollars. The delivery,, of the'goods was admitted. The defense was -that the sale in question was not a completed transaction, but simply part of a contract under which the plaintiff undertook to deliver five lots of anchors of varying sizes and that he failed to perform the whole contract, which, is claimed to be in its nature entire and not divisible. ■ The plaintiff received from the defendant a written order, as follows:

“Please enter our ordér for the following goods to be shipped to oúr New York address :■ - .

“ Galv. Kedge Anchors
25 of 35 lbs. each- 20 of 45 lbs. each.
8 “ 50 “ “ - ’ . 15 “ 65 “ '
5 “ 90 “ “ -
“ All as per specifications;
“ Wanted in two weeks.
“ All conditions must be complied with.
“ Deliver no goods without order.
“ MARINE MANFG. .& .SUPPLY CO.”

The complaint was dismissed at the • close of plaintiff’s case. From the judgment of dismissal the plaintiff appeals.

Under the well-settled -rules applicable to these circumstances the plaintiff is entitled to. every fair intendment which may arise from his proofs. The plaintiff gave proof that he delivered to the defendant all the goods contracted for; though he sued hut for a ' part. Assuming the contract in ■ question- to be entire and not divisible, he gave evidence of full .performance. It appeared that some of the articles were returned .tó him by the defendant on the claim that its customer, the United States Navy Department, would not accept them. There was no proof,' however, that the articles so returned were not in accordance with the specifications. Nor was there any proof that there was any agreement -that the articles were to be delivered subject to the approval of the Navy Department, There'is nothing in the written, order to that effect, and no testimony bearing on it.. Therefore, as the case stood, ■whether the contract was entire or divisible, there was proof of an apparent performance by the plaintiff’s assignor. The dismissal of the complaint was error. ' .

The judgment of the Municipal Court should be reversed and a new trial ordered, .costs to' abide the event..

Hirschberg, P. J.,. Woodward, Rich and Carr, JJ., concurred; Burr, J., dissented.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. ■ . . -  