
    Michael D. Mirsky, Doing Business under the Name of M. D. Mirsky & Co., Appellant, v. Betram H. Borden and Howard S. Borden, Individually and as Copartners under the Firm Name of M. C. D. Borden & Sons, Respondents.
    
      Contract — sale — action to recover for failure to deliver balance of merchandise sold — defense of breach of contract by purchaser.
    
    
      Mirsky v. Borden, 206 App. Div. 664, affirmed.
    (Argued February 25, 1924;
    decided April 1, 1924.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 8, 1923, unanimously affirming a judgment in favor of defendants entered upon a verdict. The action was by the buyer against the sellers under four contracts for the sale of quantities of cotton goods, to recover damages for failure to deliver a balance of merchandise under the contracts after part delivery. The defense was that plaintiff failed to duly perform his obligations and that the defendants, the sellers, after due and timely notice and warning to the plaintiff, the buyer, refused to continue the performance and returned the merchandise to its own stock, because of the plaintiff’s failure to pay invoices as they matured, in accordance with the contracts.
    
      Simon Fleischmann, Martin Clark and Leslie Lester for appellant.
    
      Wilbur L. Ball and Godfrey Goldmark for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: His cock, Ch. J.  