¶1The complaint alleges a cause of action for the purchase price of certain goods, alleged to have been sold and delivered by plaintiffs to defendant, and which consisted of 60 dresses. The sale was by sample. This was conceded, and the order was for “sixty (60) dresses like sample—blue.” The trial court charged the jury that the burden of proof was on the defendant to show that the goods *434did not come up to sample. This was error, which materially injured defendant. Rosenstein v. Casein Mfg. Co., 50 Misc. Rep. 345, 347, 98 N. Y. Supp. 645.
¶2Because of this error the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.