Jules Maes & Co., Inc., Appellant, v. W. R. Grace & Co., Respondent

First Department, April, 1924. Jules Maes & Co., Inc., Appellant, v. W. R. Grace & Co., Respondent. Sales — action to recover purchase price of coffee — coffee was rejected on ground that it was not of quality contracted for ■—■ complaint properly dismissed for failure of proof in absence of proof by plaintiff that goods were of quality agreed on. Appeal from a judgment of the Supreme Court in favor of the defendant, entered in the New York county clerk’s office February 20, 1923, upon the dismissal of the complaint at the close of the plaintiff’s case. [MAJORITY — Per Curiam:] Per Curiam: This is an action for the purchase price of coffee shipped from Santos, Brazil, to New York, which was rejected by the defendant upon the ground that it was not of the quality contracted for. Plaintiff faded to introduce any evidence that the goods were of such quality. A dismissal of the complaint was therefore, proper for failure of proof. The judgment should be modified by adding “ for failure of proof, but not upon the merits,” and as so modified affirmed, with costs to the respondent. Present — Clarke, P. J., Merrell, Finch and Martin, JJ. Judgment modified by inserting after the word “ dismissed,” the following: “ for failure of proof, but not upon the merits,” and as so modified affirmed, with costs to the respondent.