
    Syenite Trap Rock Company, Respondent, v. John J. Williams, Appellant.
    
      Syenite Trap Rock Co. v. Williams, 167 App. Div. 774, affirmed.
    (Submitted January 17, 1918;
    decided February 5, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 15, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover liquidated damages for failure to perform an alleged contract to purchase real property. The answer consisted of a general denial and a separate defense that the agreement referred to was intended as an option; that at the time it was drawn the plaintiff’s treasurer, who was an attorney, drew the agreement and he was at that time advising the defendant in various other legal matters, and defendant relied upon his advice and suggestions while intending to make and take only an option on the property; that afterwards the plaintiff’s treasurer advised the defendant that it was a binding contract to purchase the property; that the plaintiff never made any tender or offer and that the plaintiff was unable to perform and carry out the same, and it was not in position to perform and carry out the same; that the plaintiff did not have title to the property, and was not able to fulfill the conditions of the alleged contract and that certain property included in the alleged contract had been removed prior to the time for the performance thereof. For a further defense the answer alleged that the contract under the construction claimed by the plaintiff was entered into by the defendant under a mistake and misapprehension, and under the belief of the defendant that the provision for the liquidated damages was only to be effectual in case the defendant exercised his option to take the property and a binding contract to purchase had been entered into, and asked to have the contract reformed and to be relieved and the complaint dismissed.
    
      William P. Maloney for appellant.
    
      Harmon S. Graves for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J;, Chase, Collin, Cuddeback, Hogan and Crane, JJ. Not sitting: McLaughlin, J.  