
    William F. Muller, Respondent, v. Frederick Idler, Appellant.
    Second Department,
    May 12, 1908.
    Contract—meeting of minds.
    An agreement to purchase a business, part of the consideration to be paid at once, part at a named date, and the “ balance to be agreed upon later," is not a contract, since the minds of the parties never met as to the payment of the balance.
    In the absence of bad faith, it is not necessary for plaintiff to attempt to reach an agreement in regard to the balance before bringing an action to recover the money paid.
    Appeal by the defendant, Frederick Idler, from, a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff rendered on the 31st day of January, 1907.
    
      James A. Nelson, for the appellant.
    
      Michael F. O'Brien, for the respondent.
   Per Curiam :

This is an appeal from a judgment of the Municipal Court for the plaintiff in his action to recover $500 paid towards the purchase of certain business, including a lease. On October 24, 1906, the plaintiff and defendant made the following writing:

“Hew York, October 24, 1906.
“ This will certify that Mr. Muller has paid me by check $500 (five hundred dollars), this day on account of my place known as Idler’s Restaurant formerly Fresehman’s next to Luna Park for the amount of Ten thousand seven hundred and. fifty dollars. Three thousand ($3,000) to be paid October 27tli. Balance to be agreed upon later. This sale includes open goods only used over the Bar.”

It seems that the plaintiff paid the $500 called for by the memorandum, but never paid the $3,000. The parties never came to any agreement as to the balance of $7,250. It does appear that they met and negotiated, but their minds never came to a point on the question as to the payment of the balance. It seems to us, then, that there was not any contract between the plaintiff and defendant. (Mayer v. McCreery, 119 N. Y. 434.)

The point is made that the writing is a sufficient contract because it was incumbent upon the plaintiff to show that he attempted to reach an agreement with the defendant as to the terms of the payment of the balance. But there was no sufficient proof of bad faith, even if such a principle is to be admitted.

The judgment is affirmed, with costs.

Jerks, Hooker, Gayror, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  