
    FUNK & WAGNALLS CO. v. OPOLINSKY.
    (Supreme Court, Appellate Term.
    December 22, 1909.)
    Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by the Funk & Wagnalls Company against Samuel Opolinsky. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    John H. Regan, for appellant.
    Louis Sachs (Bernhard H. Levy, of counsel), for respondent.
   . PER CURIAM.

The trial justice was right in his conclusion that the defense attempted to be made out was insufficient. The written contract which the defendant signed expressly provided that it was unconditional, except as noted therein, and was not subject to cancellation by the defendant, and could not be modified or affected by any agreement with the solicitor. It is doubtful if the defense sought to be proved would have been permissible under the terms of the contract in any event; but this point need not be determined, because the evidence did not show either a condition precedent to the taking effect of the contract, or a mutual mistake, or a mistake on the defendant’s part and fraud on the part of the plaintiff, or any misrepresentation on the part of the plaintiff, through its solicitor or otherwise. The judgment should be affirmed, with costs.  