Diamondstone v. Hirsh & Friedman, Inc.

The record discloses a distinct issue of fact as to whether the agreement was, as testified to by plaintiffs’ witnesses, that defendant was to manufacture the garments according to sample exhibited by plaintiffs to defendant, or, as testified to by defendant’s witnesses, according to sample made by defendant and accepted by plaintiffs. It was error for the learned court to charge the jury, at the request of defendant, that if defendant did its work “ pursuant to the terms of the order and according to the sample which the defendant made for the plaintiffs ” they should find against plaintiffs and in favor of defendant on its counterclaim. As the preponderance of proof was strongly in favor of plaintiffs, this error was highly prejudicial.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellants to abide the event.

All concur; present, Guy, Gavegan and Mitchell, JJ.

Judgment reversed and new trial ordered.