Frank C. Russell and S. Livingston Davis, as Copartners, etc., Respondents, v. Yglesias & Co., Inc., Appellant

First Department, February, 1923. Frank C. Russell and S. Livingston Davis, as Copartners, etc., Respondents, v. Yglesias & Co., Inc., Appellant. Sales — action by buyer for breach of contract — ■90% delivery would have fulfilled contract — verdict should have been directed on that basis and not on basis of 100% delivery. Appeal by defendant from a judgment of the Supreme Court, entered in the New York county clerk’s office April 21, 1922, upon the verdict of a jury rendered by direction of the court, and also from an order entered May 11, 1922, resettling a previous order denying defendant’s motion to set aside the verdict. [MAJORITY — Per Curiam:] Per Curiam: The contract upon which the first cause of action is based called for the delivery of 1,000 bags of coffee with a permissible leeway of ten per cent. The defendant delivered 256 bags of coffee so that it was short 744 bags on the 1,000 bag contract. But, as a leeway of ten per cent was allowed, 900 bags would have been a good delivery. The shortage, therefore, was only 644 bags. The trial judge directed a verdict for the 744 bags, while it should have been directed for only 644 bags. We are of opinion that the judgment should be modified by reducing the verdict to $1,883.70, and as so modified affirmed. Present — Clarke, P. J., Smith, Merrell, Finch and McAvoy, JJ. Judgment modified by reducing the judgment as entered to the sum of $2,016.70, and as so modified the judgment and order are affirmed, without costs.