
    Charles D. Fox, Appellant, v. Bessie F. Smith, Respondent.
    
      Fox v. Smith, 133 App. Riv. 369, reversed.
    (Argued December 1, 1909;
    decided December 17, 1909.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1908, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of the defendant entered upon a dismissal of the complaint in an action to recover for an alleged breach of contract.
    
      Henry C. Burnstine for appellant.
    
      Arthur K. Wing for respondent.
   Judgmént reversed, new trial granted, costs to abide event, on dissenting opinion of Clarke, J., below.

Concur: Cullen, Oil. J., Gray, Willard Bartlett and Hiscook, JJ. Dissenting: Edward T. Bartlett, Haight and Chase, JJ.  