
    Mark Epman et al., Appellants, v. Arthur M. Cox et al., Respondents.
    
      Contract — sale — action for breach of contract for sale and delivery of merchandise — defense that full performance was prevented by requirements of government, a fire and strikes.
    
    
      Epman v. Cox, 197 App. Div. 949, affirmed,
    (Submitted December 7, 1922;
    decided January 9, 1923.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1921, unanimously affirming a judgment in favor of defendants entered upon a verdict. The action was to recover for an alleged breach of contract for the sale and delivery of merchandise. The contract contained the following clause: “This order is taken subject to the mill being able to get the necessary raw materials as well as to the requirements of the United States government.” The defense was that delivery in full was prevented by the requirements and demands of the government for material needed for the army and by a fire in one of its mills and by strikes.
    
      Jack L. Kraus, 2d, and Otto A. Samuels for appellants.
    
      Theodore B. Richter for respondents.
   Judgment affirmed, with costs; no opinion.

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