
    International Text Book Company, Appellant, v. Paul F. Hockeborn, Respondent.
    Reported below, 165 App. Div. 949.
    (Submitted January 23, 1918;
    decided February 12, 1918.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial .department, entered November 23, 1914, affirming a judgment of the Cayuga. County Court which affirmed a judgment of the City Court of Auburn in favor of defendant in an action to recover money alleged to be due under a contract.
    
      
      Frank S. Coburn and Richard T. Anderson for appellant.
    
      Harry V. Clements for respondent.
   Per Curiam.

The decision by the Appellate Division in this case was made before our decision in International Text Book Co. v. Tone (220 N. Y. 313), and is in direct contradiction thereof. In the former case we were able to consider the facts because they were so set out and referred to in the findings that consideration thereof survived the unanimous affirmance by the Appellate Division. In this case, however, the facts are not presented in any such manner as to enable us to consider them in view of the unanimous affirmance and thus to harmonize the decision in the present case with that made in the Tone case. Under the circumstances and inasmuch as the case involves considerations of interstate commerce, we have concluded to suspend the decision of the case in order to enable the appellant, if it so desires, to make application to the Appellate Division to request that the case be remitted to that court for re-argument and further consideration.

His cock, Ch. J., Chase, Hogan, Cardozo; Pound, McLaughlin and Andrews, JJ., concur.

Ordered accordingly.  