
    J. & H. Goodwin, Ltd., Respondent, v. Carl I. Dingfelder and Another, Doing Business under the Firm Name and Style of Dingfelder & Balish, Appellants.
    Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on November 7, 1927.
   Per Curiam.

The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event, on the following grounds: It appeared from the testimony that the contract for the sale of the onions was an oral one and that the invoice upon which the plaintiff relied was merely confirmatory of the true contract and did not constitute the contract between the parties. The court erred in excluding the testimony offered by the defendants to establish the terms of the oral contract for the purchase and sale of the onions, and in dismissing the defendants’ counterclaim. The contract in suit was not a true c. i. f. contract; and if it were, the failure of the plaintiff to deliver to the defendants documents, including insurance policies covering the merchandise, constituted a failure of proof on the part of the plaintiff. The court erred in refusing the defendants an opportunity to prove by expert testimony the condition of the merchandise at the time of shipment from Alexandria, Egypt. Present —• Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ. Judgment reversed and new trial ordered, with costs to appellants to abide the event.  