120 A.D. 766
Appellate Division of the Supreme Court of the State of New York
Decided July 15, 1907
Appellate Division of the Supreme Court of the State of New York · decided 1907-07-15
Appeal by the defendant, .Hugo Reisinger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf New York on the 30th day of June, 1906, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29'th day of June, 1906, denying.the defendant’s motion for a new trial made upon the minutes.
Decided 1907-07-15
¶1I dissent. The sale was by sample and the rice, from which the sample was- taken was in existénce. . The plaintiff is -entitled to the benefit of his contract. He - acted honorably- with and did not *769practice a fraud upon the defendant, and has recovered no more than he is entitled to. He offered the best proof as to the damages which was available. .
¶2The judgment is right and shonld be affirmed.
¶3Judgment and order reversed and new trial granted, with costs to appellant to abide event.