
    New York Architectural Terra Cotta Company v. Eden.
    
      Walter F. Beach, for plaintiff (appellant).
    
      Ezekiel Fixmam,, for defendant (respondent).
   Fitzsimons, J.

The testimony submitted establishes a sale, delivery and use by defendant of the terra cotta mentioned in the order of defendant, dated 19th of July, 1889, by plaintiff to defendant.

It does not vary from the allegation of the complaint and sustains the same. Sufficient facts were presented by said testimony to warrant its submission to the jury for consideration.

It was, therefore, error for the trial justice to dismiss the complaint.

Judgment reversed, a new trial ordered, with costs to appellant to abide event of action.

Ehrlich, Ch. J., concurs.

Judgment reversed and new trial ordered.  