
    Simon Roth, Respondent, v. Eva Phillips, Appellant.
    (City Court of New York, General Term,
    March, 1898.)
    Discontinuance of an action — Consideration.
    An answer, interposed to an action for goods sold, which alleges that, subsequent touts commencement, the plaintiff agreed to discontinue it upon the defendant’s promise to pay the debt in weekly installments and, until it was paid, to purchase from the plaintiff alone all goods required in the defendant’s business and which the plaintiff sold, presents, When accompanied by allegations of the defendant’s willingness to perform and the plaintiff’s refusal, a perfect defense to the action.
    Appeal from a judgment in favor of plaintiff by. direction jof the court.
    Max D. Steuer, for appellant.
    Hastings & Gleason, for respondent.
   Fitzsimons, Ch. J.

The complaint alleged the sale and delivery of goods to. the debtor, the answer admitted such sale and delivery and as a defense alleged that, subsequent to the commencement of the action, the plaintiff and the defendant entered into an agreement whereby the defendant agreed to pay the debt in question in installments of $25 each week, commencing on the 23d day of November, 1897, and also agreed to purchase from the plaintiff ¡all goods needed by her in her business which were sold by him and from ho ether person until said debt was fully paid. That, in consideration of such covenants on the defendant’s part, the plaintiff agreed to discontinue this action and settle the same. The answer further alleged that the defendant fully performed said contract on her part and that the plaintiff failed and refused to perform said contract on his part. The trial justice upon the plaintiff’s motion, directed a verdict in the plaintiff’s favor. upon, the ground that the 'answer presented no- defense, and in so doing we think he committed error. ' That part of the answer which alleged “that it was agreed by the defendant that, if the plaintiff would discontinue and settle this action that defendant would purchase goods from plaintiff and fwould trade with him and buy whatever she required in her line, and that defendant did in pursuance of such agreement purchase goods from plaintiff and was ready and willing to further purchase goods and that said action was thereby settled and should have been discontinued,” presented in our judgment a legal defense, which, if established, would have entitled the defendant to a dismissal of the complaint.

Judgment reversed und a new trial ordered, with costs to appellant to abide the event.

Olcott, J., concurs.

Judgment reversed and new trial ordered, with costs toi appellant to abide event.  