Plaintiff sued to recover $300 on the theory that his stock was actually sold at 114J instead of at 111J as claimed by defendant. The defendant’s first notice of sale at the higher price was prima facie evidence of such a sale but was not conclusive. Defendant was entitled to show the actual sale made. Assuming that there was insufficient proof in the record to establish an order by plaintiff to sell “ at the market,” evidence that there was no Sale on the exchange at 114J after plaintiff’s order was given was competent to disprove plaintiff’s contention of a sale at such price
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Levy, Callahan and Peters, JJ.