Globe Construction Co. v. Globe Tile Co. , 208 A.D. 701 ( 1923 )

Per Curiam:

We are of the opinion that a new trial should be had in order that the issues in the case should be fully presented to the jury. Upon the trial already had the only issue submitted was the question of the cancellation of the contract by the defendant. Whether the contract was broken by plaintiff by the sale of part of the property was also a question of fact. If defendant had breached the contract through failure to perform before plaintiff sold, the sale plainly would not then help the defendant. Nor in any event would it be a defense unless defendant refused to go on because of the sale, or unless plaintiff, by the, sale, had made it impossible for defendant to perform. Whether the statement at the top of defendant’s proposal should be considered part of the contract may be a question of fact in the case. (Sturtevant Co. v. Fireproof Film Co., 216 N. Y. 199.) We have examined the method adopted by plaintiff in proving damages, and do not consider it improper under the circumstances, nor do we find error in the allowance of the cross-examination of defendant’s president as to his previous conviction. The order setting aside the verdict and granting a new trial should be affirmed, with costs. Present — Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ. Order setting aside verdict and granting a new trial unanimously affirmed, with costs.