
    Hoisting Machinery Company, Respondent, v. Federal Terra Cotta Company, Appellant.
    
      Hoisting Machinery Co. v. Federal Terra Cotta Co., 179 App. Div. 653, affirmed..
    (Argued February 25, 1920;
    decided March 16, 1920.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 27, 1917, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was for goods alleged to have been sold and delivered. The answer denied the sale as set forth in the complaint and alleged as a special defense that the only contract between the parties was a written one under the terms of which the plaintiff agreed to deliver to the defendant certain materials which were to constitute a complete overhead monorail trolley system for the defendant’s plant at Woodbridge, N. J.; that the same was to be delivered within a definite time; that time was of the essence of the contract; that the plaintiff had wholly failed to comply with the contract and furnish the defendant a complete monorail system, and that the materials-furnished were defective, incomplete and worthless in the shape in which they were delivered to the defendant; and as a counterclaim that on account of defects in the plan and by reason of the defective and improper materials used by the plaintiff and the unworkmanlike and unskillful manner in which the same were manufactured, the defendant was damaged in the sum of $5,000. And for a partial defense alleged that the contract provided that before the final payment of $2,120 was made by the defendant to the plaintiff the work should be finally passed and approved as to workmanship and material by an engineer representing the defendant, and that the plaintiff had never procured the approval of the said engineer and was not entitled, therefore, to said final payment.
    
      William W. Niles for appellant.
    
      J. Ard Haughwout and Everett J. Esselstyn for respondent.
   Judgment affirmed, with costs, under the provisions of section 1317 of the Code of Civil Procedure; no opinion.

Concur: His cock, Ch. J., Collin, Hogan, Pound, McLaughlin, Andrews arid Elkus, JJ.  