
    SMITH v. SMITH.
    (Supreme Court, Appellate Division, Fourth Department.
    November 12, 1913.)
    Action by Birt Smith against John L. Smith, individually and as executor, etc., and Lyman C. Smith.
   PER CURIAM.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event. Held, that the verdict of the jury and the findings of the trial court, to the effect that the defendant Lyman Smith substantially performed the contract in suit, and that his failure to fully perform same was attributable to Uretta Smith, deceased, are without evidence to support same, and, further, that the weight of the evidence establishes that there was a settlement and adjustment of the matters in suit between the defendant Lyman Smith and the deceased, Uretta Smith, in her lifetime, whereby the contract in suit was extinguished.  