In view of plaintiff’s allegation that the vehicle which he purchased had not been properly conditioned and serviced before delivery to him, the refusal to permit testimony with respect to defendant’s regular procedure in the purchase, inspection and resale of used cars was error.
Under the circumstances of this case the court also erred in refusing to charge the proper measure of damages in an action for breach of warranty, as requested by defendant.
The gratuitous instruction that certain agreements are against public policy, and the court’s statement which followed, constitutes prejudicial error.
Consequently the verdict of the jury and the judgment entered thereon may not be permitted to stand.
The judgment should be reversed and a new trial ordered, with $30 costs to appellant.
Hecht, J. P., Aurelio and Tilzer, JJ., concur.
Judgment reversed, etc.