
    Marie M. Hoffman, Respondent, v. Kaufman Carpet-Jamaica, Inc., Appellant.
    Supreme Court, Appellate Term, Second Department,
    June 24, 1958.
    
      
      Benjamin Rothstein for appellant.
    
      William B. Hoffman for respondent.
   Per Curiam.

The evidence clearly established that there was a mutual cancellation of the agreement between the parties. Plaintiff therefore was entitled only to the return of the deposit made under that agreement. Furthermore, plaintiff failed to adduce proper proof of damages (cf. Buyer v. Mercury Tech. Cloth & Felt Corp., 301 N. Y. 74).

The judgment should be unanimously modified upon the law and the facts by reducing the amount of the recovery against defendant to $160, with appropriate costs in the court below, and as so modified affirmed, without costs of this appeal to either party.

Concur — Pette, Hart and Brown, JJ.

Judgment modified, etc.  