Plaintiff proved by its salesman a sale by sample, and failed to prove that the goods were up to sample. Defendant then put his father on the stand, who testified that the goods were not up to sample. This evidence was uncontradicted. The court then ruled as follows:
‘‘Judgment for the plaintiff. The burden of proving that the goods were not up to sample rests upon the defendant, and I do not think he has sustained the burden of proof, and I believe the plaintiff.”
The ruling as to the burden of proof was erroneous (Rosenstein v. Casein Mfg. Co., 50 Misc. Rep. 345, 98 N. Y. Supp. 645), and plaintiff’s only testimony bearing in any way on the question had previously been stricken out by the court, and therefore could not be considered.
Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.