
    INGERSOLL, Appellant, v. SPRINGER, Respondent.
    (Supreme Court, Appellate Term.
    March 2, 1906.)
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Edward P. Ingersoll against John H. Springer. From a judgment for defendant after trial without a jury, plaintiff appeals.
    Reversed.
    Porter & Barnes, for appellant.
    Elbert Crandall, for respondent.
   PER CURIAM.

The plaintiff asks to have the judgment reversed on the ground that evidence to vary the written contract was erroneously admitted. The defendant, in his brief, assumes that he proved an oral agreement, performance of which the plaintiff failed to show. The plaintiff practically makes the same assumption in his brief by complaining that he was hurt by the admission of such supposed evidence on the defendant’s part. As a matter of fact it is impossible to make out from the record what were the form and dimensions of the advertisement actually printed and what were the form and dimensions which the defendant claimed it should have taken. The briefs assume and tacitly concede facts not appearing in the record, and one of the two exhibits is' not annexed to the return. So far as appears from anything before us, the advertisement printed was just what the defendant attempted to prove it should have been, but was not, done, and for being permitted to prove which the plaintiff claimed he was injured. When a proper record comes before us, we can consider the questions discussed in the briefs. Judgment reversed, and new trial ordered, with costs to abide the event.

SOOTT and GIEGERICH, JJ.,

concur.

GREENBAUM, J.,

concurs in the result.  