
    Farmers Syndicate, Inc., Respondent, v. F. Kieser & Son Co., Inc., Appellant.
    
      Contract — rebate — action to recover for failure to pay rebate — defense of failure of plaintiff to observe conditions upon which payment of rebate was to be made — counterclaim for breach of contract.
    
    
      Farmers Syndicate, Inc., v. Kieser & Son Co., Inc., 207 App. Div. 881, affirmed.
    (Argued October 22, 1924;
    decided December 19, 1924.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 24, 1923, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover damages by reason of the refusal of the defendant to fulfill its alleged agreement to pay to the plaintiff a rebate of $4 per ton, of 1,150 tons of dairy feed, which had been theretofore shipped to the plaintiff under certain contracts; and to pay, also, $250 on account of shortage of shipments which had been made. The answer alleged that the agreement, if any, of the defendant to rebate the $4 per ton was not absolute, but was conditioned upon the agreement of the plaintiff that it would forthwith give the defendant directions for the shipping of the tons of feed bought by it through the several contracts, but not then directed to be shipped and not then delivered. It alleged, in addition, a counterclaim in that the plaintiff violated its contracts to receive and pay for 1,013 tons of the feed contracted and bought by the plaintiff.
    
      
      Frederick Collin and Frederick E. Hawkes for appellant.
    
      Clayton R. Lusk for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Hiscock, Ch. J.  