
    John Volk, Respt, v. Sigmund Bergman, App’lt.
    N. Y. C. C.,
    April 30, 1896.
    John E. Brodsky, for app’lt; Henry G. Harris, for resp’t.
   FITZSIMONS, J.

—Because of the decision of the general term of this court herein filed November 26, 1895, upon this appeal we are limited to a consideration of the question whether or not the defendant actually paid to the plaintiff .any part of the sum of $1,045, sued for herein. There is certainly no evidence of any such payment, the defendant merely contending that the sixth clause of the agreement made between the parties hereto, and upon which this action is based, only required the payment of the sum of $2,500 per year until the expiration of the term (viz. five years from date thereof) mentioned in such agreement,'when an accounting might be required, and the balance over $12,500, if any there was found to be due, should be paid. That contention in said former appeal, as we have said, was passed upon adversely to the defendant. Therefore we must affirm the judgment herein, with costs.  