Second Department, October, 1911.

[Vol 146. As the matter stands, the purchaser does exactly the opposite of what he agreed to do, and the Fein-Ball Company or its assignee is deprived pro tanto of the consideration promised it, with the result of enabling the purchaser to avoid the fulfillment of his promise. The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

THE PEERLESS PATTERN COMPANY, Appellant, v. ISIDOR GRABOW, Respondent.

Sale-contract for sale of patterns - inconsistent findings.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, rendered on the 6th day of February, 1911.

CARR, J.: The plaintiff sued for twenty-nine dollars and ten cents. The defendant denied liability and counterclaimed for fifty-nine dollars. The court awarded judgment for the defendant against the plaintiff in the sum of twenty-eight dollars and ninety cents and costs. To reach this result the court must have found in favor of the plaintiff for the full amount of its claim and in favor of the defendant for the full amount of his counterclaim. The appellant insists that these findings are so inconsistent as to be mutually destructive. The plaintiff's claim and the defendant's counterclaim both arose out of the same series of transactions under a written contract which defined in detail the mutual rights of the parties. This contract provided for the sale by the plaintiff of certain paper patterns to the defendant for retail sale by him. The price was specified therein, and likewise the time and terms of payment for the goods. The plaintiff sued for the contract price of certain sets of patterns furnished by it apparently pursuant to the terms of the written contract. The defendant denied liability for these patterns on the ground that the plaintiff had previously breached the contract before the delivery of the articles, which he claimed he refused to accept under the terms of the contract. By finding for the plaintiff for the full amount of its claim, there was necessarily a finding that the plaintiff had not breached its contract or that there was a waiver by the defendant of any breach and an acceptance of the goods. The basis of the defendant's claim rested upon the terms of the contract itself. This instrument provided expressly that during the life of the contract the defendant might return any discarded" patterns to the plaintiff "in exchange at even rates for other patterns to be shipped thereafter." The defendant did return some 1,160 discarded patterns, for which he claims five cents each, making in all fifty-nine dollars, the amount of his counterclaim. Under the terms of the contract he was entitled, not to five cents for each returned pattern, but to an exchange of new patterns "at even rates" for the old ones, and this right existed only during the continuance of the contract, and was dependent upon performance of the conditions thereof on his part, unless there had been a breach thereof by the plaintiff. The basis of his counterclaim is not that the plaintiff did not give him new patterns in exchange for the old, but that it did not pay him five cents each for the old patterns which he had returned. To get an

App. Div.]

Second Department, October, 1911.

exchange of new patterns for old, it was incumbent on him to perform his part of the contract. The trial court, by finding for the plaintiff for the full amount of its claim, necessarily found that the defendant had not performed under the contract, and that the plaintiff was not in default. If so, there was no basis for the counterclaim of the defendant. As the judgment of the trial court is based upon irreconcilable findings, it must be reversed and a new trial ordered, costs to abide the event. Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

The People of the State of New York ex rel. Harry F. Dwyer, Relator, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Respondent.-Motion granted, without costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

The People of the State of New York ex rel. George A. Mencke, Appellant, v. William F. Baker, as Police Commissioner of the City of New York, Respondent.- Motion granted, without costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Frederick A. Auffermann, Appellant, v. Publishers' Paper Company and the American Mahogany Company, Respondents.-- Motion to compel the acceptance of the notice of appeal granted, with ten dollars costs. Present- Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

The Charles H. Brown Paint Company, Respondent, v. Charles J. Reinhardt, Appellant, Impleaded with William W. Penfield. Motion denied, on condition that the appellant pay ten dollars costs within ten days, perfect his appeal, place the case at the foot of the calendar and be ready for argument when reached. Otherwise motion granted, with ten dollars costs. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ. Alfred P. Delcambre, Sr., Respondent, v. Marie H. Delcambre and Others, Defendants, Impleaded with City of Mount Vernon, Appellant.— Motion denied. It was not the intention of this court to grant any leave to plead over. If the judgment entered in this action by the clerk of Westchester county is not in its form final, in that it does not expressly provide that the complaint should be dismissed, the remedy is by a motion at Special Term to instruct the clerk to enter such judgment as the decision of this court authorized. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Sarah Gallagher, Respondent, v. George S. Billings, Individually, etc., and Others, Appellants.- Motions to dismiss appeal denied, but permission is given to respondent to present upon the argument such original papers on file in the Kings county clerk's office as she is advised may be necessary, together with the envelope referred to in the moving papers. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

George H. Rice Company, etc., Respondent, v. Louis Saul, Appellant.— Motion granted, without costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Second Department, October, 1911.

[Vol. 146.

George H. Rice Company, etc., Respondent, v. Louis Saul, Appellant.Motion denied, without costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Meyer Goldberg, Respondent, v. James S. Wemyss Company, Appellant. — Motion denied, without costs, and case placed at the foot of the present calendar, to be argued when reached; otherwise motion granted, with ten dollars costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

William H. Gompert, Respondent, v. Patrick J. Healy, Appellant.Motion denied, on condition that the appellant pay ten dollars costs within ten days, perfect his appeal, place the case upon the calendar and be ready for argument when reached. Otherwise, motion granted, with ten dollars costs. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Catherine Hayes, Respondent, v. Edmond J. Hayes, Appellant.— Motion to dismiss appeal denied, without prejudice to a renewal thereof. Motion for stay granted, provided the appellant prosecute his appeal with due diligence. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

In the Matter of the Judicial Settlement of the Account of Robert Ellis, as Executor and Trustee of the Last Will and Testament of Samuel Burden, Deceased.-Motion denied, without costs, without prejudice to renewal in case the appeal in the First Department is not prosecuted with diligence. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ. In the Matter of Eleanor Scott, an Incompetent. Motion granted, with ten dollars costs. Present — Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

William Jenne, Respondent, v. Otis Elevator Company, Appellant.— Motion granted, without costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Emma Kramer, Respondent, v. Alphonse Bintener, Appellant.- Motion granted. The answering affidavits not only do not comply with the provisions of the rule* adopted October 4, 1910, requiring a concise statement of the facts out of which the controversy arose, and the questions of law and fact involved in the appeal, showing that the appeal is a meritorious one, but they fail to deny the allegations of the moving affidavits to the effect that no important exception was taken upon the trial, and that the question is purely one of fact, decided upon conflicting evidence. Present -Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Patrick Moran, Respondent, v. O'Rourke Engineering and Construction Company, Appellant.- Motions denied, without costs. Present — Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Fannie Pitman, as Administratrix, etc., Respondent, v. The City of New York, Appellant.- Motion denied, without costs. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

The People of the State of New York ex rel. John M. Farley, Respondent, v. Max Winkler and Others, Constituting the Board of Water Commissioners, etc., Appellants.—Motion granted, without costs. Present

*See App. Div. Rules, 2d Dept., Special Rule.-[REP.

App. Div.]

Second Department, October, 1911.

Jenks, P. J., Burr, Carr, Woodward and Rich, JJ. Order to be settled before Mr. Justice Carr.

Annie L. Reilly, Respondent, v. John J. Reilly, Appellant. - Motion denied, without costs. Present - Jenks, P. J., Burr, Carr, Woodward and

Rich, JJ.

Edwin Rosebrook, Respondent, v. Westinghouse, Church, Kerr & Company, Appellant.- Motion denied, without costs. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Frank S. Ryno, Respondent, v. Hannah Crawford, Appellant.- Motion denied, without costs. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

C. Olivia Sabine, Appellant, v. Maggie S. Paine, Respondent, Impleaded with Eugene F. Vacheron, Defendant.- Motion denied, with ten dollars costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Catherine E. Sheridan, Suing in the Name of Emily Adams and Claudina Post, Her Grantors, Appellant, v. Charles Cardwell, Appellant.- Motion to resettle order granted, without costs. Present - Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Elizabeth Sullivan, as Administratrix, etc., Respondent, v. Annie E. Franzreb, Appellant.- Motion granted, without costs. Present― Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

John H. Voorhees and Others, Respondents, v. Harry Unger and Others, Appellants.- Motion granted, without costs. Present-Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

William J. Watts, Respondent, v. Hewlett Bay Company and Atlantic, Gulf and Pacific Company, Appellants. - Motion denied, on condition that the appellant pay ten dollars costs within ten days, perfect its appeal, place the case on the next calendar and be ready for argument when reached. Otherwise, motion granted, with ten dollars costs. Present Jenks, P. J., Burr, Carr, Woodward and Rich, JJ.

The American Slicing Machine Company, Appellant, v. Charles Neu, Respondent.-Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, on the ground that plaintiff made out a prima facie case of delivery under the contract. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Mary Elizabeth Banzer, Respondent, v. Charles Richter, Appellant.Judgment afirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Samuel L. Chinman and Charles Puksansky, Respondents, v. Louis Liebross, etc., Appellant.- Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, on the ground that the testimony showing payment by the defendant to Puksansky was uncontradicted and should not have been rejected by the court. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Mary S. Cole, as Administratrix, etc., of Townsend Cole, Deceased, Respondent, v. Central New England Railway Company, Appellant.Order setting aside verdict and granting new trial reversed, with costs, upon the ground that no errors were committed upon the trial to plaintiff's AFP. DIV.-VOL. CXLVI. 58

Second Department, October, 1911.

[Vol. 146. prejudice, and upon the further ground that plaintiff failed to show that decedent was free from negligence contributing to the injury. Jenks, P. J., Burr, Thomas and Carr, JJ, concurred; Hirschberg, J., dissented. Mary C. DesRoches, Respondent, v. Kate Hayden and Others, Appellants.-The deed executed to Kate Hayden is not void, and should not be canceled for fraud, but should be adjudged a mortgage for the amount advanced by plaintiff's authority on account of the Ansorge mortgage, and for such further sums as Mrs. Hayden and her grantees have advanced for the maintenance of the property, as found by the trial justice, and the judgment as so modified is affirmed, without costs. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Helen Bratt DuBarry, Respondent, v. Augusto E. Gennaro, Appellant. - Interlocutory judgment affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Morris Goldstein, Respondent, v. Isaac P. Lewin, Appellant.— Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Harry Greenblatt, Appellant, v. Jacob Feingold, Respondent. — Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Henri Grossman, Respondent, v. Pericles Xenakis and Constantine Xenakis, Appellants. - Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Adele Gumbiner, Appellant, v. Alfred A. Gumbiner, Respondent. — Judgment modified by striking out the expression "upon the merits," and as thus modified affirmed, without costs. No opinion. Jenks, P. J., Thomas, Carr and Rich, JJ., concurred; Woodward, J., dissented.

In the Matter of Supplementary Proceedings: Florence Balaban, Respondent, v. William Middleton, Defendant. William W. Wohlgemuth, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Harvey Kernan, Respondent, v. Barney Elfin and Others, Defendants. Louis Enoch, Appellant.- Judgment of the Municipal Court affirmed, with costs. No opinion. Burr, Thomas, Carr, Woodward and Rich, JJ., concurred.

John Knief, Appellant, v. David H. Valentine, Respondent.- Order modified by disallowing amendments 50, 51 and 53, and as so modified affirmed, without costs. No opinion. Jenks, P. J., Burr, Thomas and Rich, JJ., concurred; Hirschberg, J., voted to affirm.

Martin Leach, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. - Judgment and order unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Edward M. Lockwood, Respondent, v. William J. Belford, Appellant.Judgment and order affirmed, with costs. No opinion. Thomas, Carr, Woodward and Rich, JJ., concurred; Jenks, P. J., not voting.