Samuel Hutchinson et al., Respondents, v. Michael Doyle et al., Appellants

Samuel Hutchinson et al., Respondents, v. Michael Doyle et al., Appellants. Trial—Direction op Verdict—When Erroneous. The direction of a verdict in a case where the evidence presents an issue of fact is reversible error. EutcTiinson v. Boyle, 55 App. Div. 640, reversed. (Argued January 20, 1902; decided February 25, 1902.) Appeal from a judgment of the 'Appellate Division of the . Supreme Court in the fourth judicial department, entered November 21, 1900, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court and an order denying a motion for a new trial. Isaac Adler for appellants. John D. Lynn for respondents. [MAJORITY — Cullen, J.] Cullen, J. The plaintiffs’ contract required of them a delivery of the particular goods sold to Brown at Pittsford and compliance with their warranty that all the goods should be of the quality of those inspected and accepted by Brown. While no witnesses for the defendants contradicted the testimony of the plaintiffs’ employees, that the goods sold were the goods shipped to the defendants, the evidence on their behalf tended to show that the condition of the goods when received in Rochester was so different from that of the goods inspected hy Brown in Pittsford as to raise an issue of fact both as to the identity of the goods and breach of the warranty. The case was, therefore, for the jury. The judgment should be reversed and a new trial granted, costs to abide the event. Parker, Ch. J., Bartlett, Haight, Martin, Yann and Werner, JJ., concur. Judgment reversed, etc.