Opinion
December 23, 1937.
Appeal from Supreme Court of Bronx County.
Isaac N. Jacobson of counsel [ Irving Meister with him on the brief; Praeger, Meister Bokat, attorneys], for the appellant.
Milton M. Eisenberg of counsel [ Ralph Weller with him on the brief], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, DORE and COHN, JJ.
The court submitted to the jury, as a possible basis for plaintiff's damages, contracts with two drug companies, which plaintiff claimed he was unable to complete because of defendant's breach of the contract in suit. One of these contracts was with the Progressive Drug Company, Inc., and was in writing; the other was an alleged oral contract with D. Kaltman Company, Inc. The oral contract was denied and any finding of its existence would be against the weight of the evidence. It is impossible to say whether the verdict of the jury was based on either or both of these contracts. If based on the D. Kaltman Company, Inc., order, it cannot be sustained; if on the Progressive Drug Company, Inc., order, it is clearly excessive.
The judgment and orders should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment and orders unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.