
    PARK v. EISENBERG et al.
    (Supreme Court, Appellate Term, First Department.
    December 4, 1914.)
    Appeal from Municipal Court, Borough of Manhattan, First District. Action by William Park against Jacob Eisenberg others. From an order setting aside a verdict in favor of defendants, defendants appeal. Reversed, and verdict reinstated. Myers Goldsmith, of New York City (Emanuel J. ers and Josiah Canter, both of New York City, of counsel), for appellant. Abraham Landau and Jacob I. Berman, both of New York City, for respondents.
   PER CURIAM.

This action was brought for goods sold and delivered. The defense was that the goods were sold by sample, and that they did not correspond in kind, color, or quality. The delivery of the goods, the amount, and price agreed upon were conceded, and the only issue was as to whether or not the goods delivered were according to the samples shown. Upon this issue there was a sharp conflict of evidence. Experts were called by both- sides and the case was submitted to the jury in a charge eminently fair to the defendant. The plaintiff asked the court to charge the jury that, “if the goods delivered are as near the sample as human agency can make them, the plaintiff is entitled to a verdict.” This the court refused to charge. The jury, however, found for the plaintiff, which verdict the court below immediately set aside as contrary to the evidence. A careful reading of the record does not bear out this claim. The trial justice stated that the “plaintiff’s own witnesses have testified that these goods were not the same as the sample.” The plaintiff offered the testimony of three witnesses, concededly experts, each of whom had carefully examined the samples and the goods, and each of whom testified, in substance, that the goods delivered were identical in color, made from the same warp and from the same material, and that if there was any difference in finish it was slight, and that the goods delivered were as near the samples as any goods could be made. We can discover no preponderance of testimony in favor of the defendant that leads us to believe that the verdict of the jury was reached by reason of any prejudice or bias. Order reversed, with costs, and verdict reinstated.  