
    Rathbone, Sard & Company, Appellant, v. Virginia Iron, Coal and Coke Company, Respondent.
    
      Contract — sale — action for breach of contract to deliver iron — defense of failure of payment for iron already delivered.
    
    
      Rathbone, Sard & Co. v. Virginia Iron, Coal & Coke Co., 198 App. Div. 889, affirmed.
    (Argued December 7, 1922;
    decided January 9, 1923.)
    Appeal from a judgment, entered February 1, 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 directed by the court and directing a dismissal of the complaint. The action was for the alleged breach of a contract through defendant’s refusal to deliver a quantity of pig iron remaining undelivered under a contract which called for the sale and delivery of one.thousand tons of pig iron over a period of time. The defense is that the refusal was justified by the plaintiff’s failure to pay for the pig iron already delivered, in the manner required by the contract.
    
      Perlie P. Fallon for appellant.
    
      Arthur B. Brenner and William Mason Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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