The action is brought by a resident and subject of the Kingdom of Italy to recover damages for failure of the defendant to deliver American caustic soda which it had agreed to sell and deliver, to the plaintiff. In addition to the witnesses whose testimony may be material and necessary, the order provides for the examination of eight merchants for the purpose of proving the market price of American caustic soda in Genoa, Italy, at the time of the alleged breach of the contract. The soda was to be shipped from New York, payment to be made upon shipment against shipping documents by certain New York banks, with whom the plaintiff agreed to *235open and maintain a credit for that purpose. It is not alleged in the complaint that plaintiff was compelled to buy any caustic soda in Genoa, Italy.
The rule is that where delivery and payment are to be concurrent acts, and the vendor refuses to deliver, the vendee is entitled to recover as damages the difference between the contract price and market value of the goods at the time and place appointed for delivery. The place was New York city, and not Genoa, Italy, and, therefore, the market price of caustic soda in Genoa, Italy, was not material or relevant to the case.
The order for the issuance of the letters rogatory will be modified by striking therefrom the following names, “ Attilio Carmagnani, Eugenio Cignogna, E. Cicolani, M. Tamburini, of the firm of Pertuso and Tamburini: Richard Roe, president of the Chamber of Commerce, in Genoa, Italy (the name Richard Roe being fictitious, the true name being unknown, said witness being the president of the Chamber of Commerce in Genoa, Italy); F. Scrimaglio, of F. Scrimaglio & Company; Tito Tubini and Pienemonte Branceleoni,” and, as so modified, affirmed, with ten dollars costs and disbursements to the appellant.
Clarke, P. J., Laughlin, Smith and Philbin, JJ., concurred.
Order modified as indicated in opinion, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.