
    Felix Salomon et al., Respondents, v. Cornelius Kahlen, Appellant.
    
      Salomon v. Kahlen, 163 App. Div. 947, affirmed.
    (Submitted March 22, 1917;
    decided April 6, 1917.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1914, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court in an action to recover a balance alleged to be due for goods sold and delivered by plaintiffs’ assignor to the defendant. The following rulings upon questions of law were relied upon to secure a reversal of the judgment: First. The refusal of the court to dismiss the complaint upon the ground of variance between the contract pleaded and the one disclosed by the evidence. Second. The ruling that the letter of November 17, 1907, as orally renewed on November 8, 1910, and as practically construed and acted upon by the parties for many years, did not constitute a valid and binding contract between the plaintiffs’ assignor and the defendant, at least in so far as the same was performed by both parties. Third. The failure of the court to allow the defendant a discount of two per cent from the amount of the plaintiffs’ claim.
    
      Cyril F. Dos Passos for appellant.
    
      Henry Necarsulmer for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscook, Oh. J., Chase, Collin, Hogan, McLaughlin and Crane, JJ. Not sitting: Cardozo, J.  