#### Louis Brown and Morris Taub, Respondents, *v.*Fannie Grossman and Herman Hecht, Appellants.

First Department,

November 6, 1908.

Sale — order for delivery to third person — failure of proof—evidence — hearsay — trial — dismissal on merits after verdict.

Action to recover the price of goods delivered to a third person on the alleged order of the defendant. ' Evidence examined and *held,*to establish only an order for a single delivery and that the defendant was not liable for subsequent deliveries.

Testimony by a seller as to the amount of goods sold based only on information given to him by his sales agent is hearsay and inadmissible.

Where a trial judge erroneously denies a nonsuit and a motion for the direction of a verdict for the defendant and sends the case to the jury, he cannot, after a verdict for the plaintiff, dismiss on the merits, but can only set aside the verdict and order a new trial.

Appeal by the defendants, Fannie Grossman and another, from an order of the Appellate Term of the Supreme Court,, entered in the office of the clerk of the county of New York on the 7th day of February, 1908, reversing a judgment of the City Court of the city of New York in favor of the defendants, and also reversing an order of said City Court which set aside a verdict in favor of the plaintiffs.

.*Harvey O.*Price, for the appellants.

*I. Gainsburg,*for the respondents.

McLaughlin, J.:

This action was brought in the City Court to recover a balance alleged to be due for goods sold and delivered. The plaintiffs had a verdict for the full amount claimed, which the trial judge set aside, and dismissed the complaint on the merits.' The plaintiffs thereupon appealed to the Appellate Term, which reversed the order and judgment of the City Court and reinstated the verdict. The defendants, by permission, then appealed to this court. The answer put in issue the.material allegations of the complaint.

The plaintiffs’ contention was that the goods for which the balance was sought to be recovered were ordered by the defendants, *497and by their direction delivered'to a third party. The evidence to establish this fact consisted mainly in a written order concededly made by the defendants, which reads as follows:

> “New York, *Jan.*7,1907.

> “ Messrs. Brown and Taub,

> “ Dear Sirs.—Kindly deliver to Freirich and Santman the goods they ordered on our account, and oblige,

> “ Respectfully yours,

> “ GROSSMAN & HECHT.”

On the day this order was written one case of goods was delivered by the plaintiffs to. Freirich & Santman, and the question presented is whether this order covered other goods which were delivered between that date and February thirteenth fóllowing. If it did not, then the plaintiffs were not entitled to recover, because no claim is made that the first case of goods delivered was not paid for.

There is absolutely no evidence in the case which would justify a finding that any goods were delivered to Freirich & Santman by direction of the defendants, except one case which was ordered on the seventh of January, the date of the order above quoted. The witness Sarasohn, plaintiffs’ salesman, testified that Freirich & Santman, on the 7th of January, 1907, gave him an order for one case of goods; that he took it, before delivering the goods, to Brown, one of the plaintiffs, who said he did not care to sell Freirich & Santman, and thereupon the salesman went back to Santman and told him what Brown had said. Freirich & Santman occupied offices with the defendants, who, on being informed that plaintiffs wanted them to guarantee the account, gave to the salesman the order above quoted, and one case of goods was thereafter delivered on that day. Sarasohn further testified, on cross-examination, that the order that Freirich & Santman gave him on the seventh of January was for one case, and he was then told “to send one case and then he would let me know when again; ” that he “ had not a certain order then,” that is, when he first talked with one of the plaintiffs, but later in the day, when he went back to Freirich *&*Santman, he got a specific order which was “ to send one case and he would let us know for the balance.”

*498Brown, one of the plaintiffs, testified that the order was for from three to five cases, but only one ease was delivered on the seventh of January; that all he knew about the order was what Sarasohn had told him. The testimony of this witness was stricken out as hearsay, and properly so. All Brown knew about the transaction is what Sarasohn told him, and his testimony clearly shows, taken in connection with the writtdn order, that all the defendants obligated themselves to do-was to pay for what goods had then been ordered. These goods had been paid for when the action was brought. There was, therefore, no evidence to sustain the verdict of.the jury, and for that reason the trial judge properly set it aside. He should, at the close of plaintiffs’ case, have granted defendants’ motion and dismissed the complaint, and at the close of the trial should have granted defendants’ motion and directed a verdict in their favor. He, however, denied both motions and sent the case to the jury. When the motion was made to dismiss the complaint, or for the direction of a verdict, he could, pending the decision of such motion, submit any question of fact raised by the pleadings to the jury, or require it to assess the damages, and then after' it had rendered a special verdict upon such submission, or assessed the damages, he could pass upon the motion, either to dismiss the complaint or direct such general verdict as either party was entitled to. (Code Civ. Proc. § 1187.) This he did not do. He denied the motions, holding, as we think, erroneously, that there were questions of fact to be submitted to the jury, and it having found for the plaintiffs, all he could do was to set the verdict aside and Order a new trial. He could not dismiss the complaint on the merits.

It follows that the determination of the Appellate Term should be reversed and the judgment of the City Court: modified by granting a new trial, with costs to the defendants in this court and in the Appellate Term.

Patterson, P. J., Laughlin, Houghton and Scott, Jj., concurred.

Determination reversed and judgment of the City Court modified as stated in Opinion, with costs to defendants in- this court and in the Appellate Term. Settle order on notice.