
    William Delaney, Respondent, v. Peter J. McGarry et al., Appellants.
    Appeal by the defendants from a judgment of the Municipal Court of the city of New York, seventh district, borough of Manhattan, in favor of the plaintiff.
    Paskusz & Cohen, for appellants.
    Hubbell & Baird, for respondent.
   McAdam, J.

On May 10, 1900, the plaintiff sold to the defendants the liquor store, No. 801 Second avenue, in the borough of Manhattan, and covenanted that he would not for the term of five years thereafter engage in the same business within twenty blocks thereof. Having opened, negotiations for a store within the prohibited territory, the plaintiff, on September 20, 1900, agreed to pay the defendants $500 for a release from said covenant •and gave them his check for that amount dated October 1, 1900. The agreement provided that in case the plaintiff decided not to avail himself of the release on or before October first, they would refund him the money. The purpose of this condition was that, if the negotiations fell through and the plaintiff did not get the place he was looking for, the parties hereto were to be restored to their former position. The proposed purchase fell through, and the defendants, having obtained the money on the plaintiff’s $500 check, the action is to recover back the amount thereof. The evidence shows that, prior to October 1, 1900, the plaintiff decided not to avail himself of the release, that he called upon the defendants, saw Mr. Walsh, one of them, and demanded from him the return of his check. Walsh said he was unable to hand it over then, because his partner had taken the check with him to Long Island. The demand was specific. The plaintiff testified that, on September 29, 1900, he saw the defendant Walsh and said to him “ The thing is off, give me the check, and I will give you the receipt.” To which Walsh made answer as- above.

Hpon the proofs the plaintiff was not required to depend upon a waiver as to time for demand in order to recover back his money, and the discussion of that subject by the justice, in his written opinion, and by counsel, in their points, was quite unnecessary. The opinion forms no part of the record upon appeal. Koehler v. Hughes, 148 N. Y. 507; Randall v. New York El. R. R Co., 149 id. 211.

The judgment must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.  