
    Pennsylvania Wood and Iron Company, Respondent, v. New York Car Wheel Company, Appellant.
    
      Contract — action to recover for merchandise sold and delivered — counterclaim for damages from alleged neglect to deliver all of merchandise contracted for.
    
    
      Pennsylvania Wood & Iron Co. v. N. Y. Car Wheel Co., 197 App. Div. 927, affirmed.
    (Argued June 8, 1922;
    decided July 12, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 24, 1921, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover the agreed price of certain scrap iron, liability for which was not disputed by defendant. The question litigated was raised by two counterclaims set up in the answer, both alleging that plaintiff had entered into a contract to sell and deliver certain scrap iron to defendant at an agreed price; that only part of said iron had been delivered and that plaintiff had failed and neglected to deliver the balance, to the defendant’s damage in an amount greater than the sum due to the plaintiff. The reply alleged that plaintiff had offered to deliver the iron in question but that defendant had refused to accept delivery.
    
      
      Joseph H. Morey and David T. Murray for appellant.
    
      Godfrey M. Frohe for respondent.
   Judgment affirmed, with costs; no opinion.,

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Absent: Hogan, J.  