Buyer v. Mercury Technical Cloth & Felt Corp.

No opinion. Present — Peck, P. J., Glennon, Dore, Cohn and Shientag, JJ.; Glennon and Dore, JJ., dissent in the following memorandum: The trial court practically directed a verdict in plaintiff’s favor telling the jury in effect that there was an available market and the market price for the merchandise in question. Plaintiff’s proof of that was conclusory. The measure of plaintiff’s damages was not, as the court charged, the “ profit ” that he would have realized but the difference between the contract price and the market price and in this respect the court’s charge was erroneous. In that state of the record the judgment in plaintiff’s favor entered on the jury’s verdict should be reversed and a new trial ordered, with costs to the appellant to abide the event.