24 A.D.2d 509
N.Y. App. Div.
1965

In an action to recover the agreed price of merchandise allegedly sold by plaintiff to defendant, the plaintiff, by permission of this court, appeals from so much of an order of the Appellate Term of the Supreme Court, dated December 11, 1964, reversing a judgment of the District Court of Nassau County, as: (1) directed a new trial limited to an assessment of the damages; and (2) failed to direct judgment in the plaintiff’s favor. The District Court, after a nonjury trial, had dismissed the complaint “without prejudice to any claim plaintiff may have against the defendant on the theory of consignment.” The Appellate Term reversed the judgment of the District Court and directed the new trial limited to the purpose stated. Order of Appellate Term, insofar as appealed from, affirmed, with costs to defendant to abide the new trial. There was ample proof upon which to determine that the transaction constituted a consignment of goods by plaintiff to defendant, with the latter selling the merchandise at a profit to himself, remitting to plaintiff a sum equal to the prices set forth on the schedule, and returning to plaintiff the unsold items. In assessing the damages upon the new trial, the issue of payment of $400 remains to be resolved. It seems to be assumed that, pursuant to notice, a motion to amend the complaint by deletion of the admission that the $400 was paid on account, was granted. Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.