
    H. P. Nelson Company, Respondent, v. Gustav H. Poppenberg, Appellant.
    (Argued May 9, 1917;
    decided May 25, 1917.)
    
      Nelson Co. v. Poppenberg, 166 App. Div. 967, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 16, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for pianos sold and delivered. The answer of defendant did not put in issue the sale and delivery or value of the pianos, but counterclaimed for the value of a certain automobile involved in a transaction which took place a year and three months before the sale of the pianos. The counterclaim asserted that on July 26, 1912, plaintiff agreed to purchase a certain automobile of defendant, to be paid for by delivering to defendant thirty-six pianos; that the automobile was to be delivered not later than July tenth, and that plaintiff had refused to perform its part of this contract, while defendant was ready and willing to carry out the agreement, and that the automobile was held by defendant ready for delivery to plaintiff, alleging damages thereby.
    
      Frank Gibbons for appellant.
    
      Simon Fleischmann for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Chase, Collin, Cuddeback, Hogan, Cardozo and McLaughlin, JJ.  