
    Peierls, Buhler & Co., Inc., Appellant, v. Marks Goldstein et al., Respondents.
    
      Contract — sale — action to recover for goods sold and delivered — defense that plaintiff breached contract by refusing delivery of balance of goods sold and that defendants offered to return goods that had been delivered.
    
    
      Peierls, Buhler & Co. v. Newburger, 202 App. Div. 471, affirmed.
    (Argued April 23, 1923;
    decided May 8, 1923.)
    Appeal from a judgment, entered July 22, 1922, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was brought to recover for goods sold and delivered. The answer was a general denial and set up, as affirmative defenses, first, that in April of 1921 an agreement was entered into, under which the plaintiff’s assignor, the Saxonia Dress Goods Malls, agreed to sell and deliver to these defendants twenty pieces of merchandise at a specified price per yard; that after they had delivered only seven pieces, they, without any justification, refused to deliver the balance, and did, on July 20, 1921, notify these defendants that they did not intend to deliver, and canceled the agreement,, and that thereupon the defendants offered to return the seven pieces, which are the seven pieces the purchase price of which the plaintiff is seeking to recover. Second, that the plaintiff’s assignor agreed to take back the seven pieces.
    
      David Weinstein and Douglass Newman for appellant.
    
      Jacob H. Corn for respondents.
   Judgment affirmed, with costs; no opinion,

Concur: Hiscock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ. Absent: Cardozo, J.  