
    John Muldoon, Appellant, v. Dock Contractor Company, Respondent.
    
      Contract — sub-contract to remove excavated material providing subcontractor to receive portion of proceeds of material sold by contractor or sub-contractor and carted by latter — when sub-contractor not entitled to recover prospective profits on material sold by him which contractor refused to permit him to deliver.
    
    
      Muldoon v. Dock Contractor Co., 199 App. Div. 733, affirmed.
    (Argued January 31, 1923;
    decided March 6, 1923.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 16, 1922, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial. The action was on contract, the particular paragraphs over which the controversy arises reading as follows: “ That the Contractor is to have title to all excavated material and upon order of the Contractor so to do the Sub-contractor shall deliver same to wheresoever the Contractor may designate; provided that should the Contractor or Sub-contractor arrange for sale of the excavated material and the Sub-contractor cart same, then the Sub-contractor shall receive 50% of the proceeds of such sale which additional amount will cover all costs for any increased length of haul.” Plaintiff, the sub-contractor, made agreements with third parties to sell some of the excavated material but defendant refused to permit him to cart and deliver same. He sues to recover fifty per cent of the prospective proceeds.
    
      Anthony J. Ernest and John B. Johnston for appellant.
    
      John P. Maloney for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  