
    The Geneva National Bank, Respondent, v. The Frank Brewery, Appellant.
    
      Geneva Nat. Bank v. Frank Brewery, 170 App. Div. 937, affirmed.
    (Argued December 10, 1917;
    decided January 8, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 13, 1915, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought by the plaintiff, as assignee, to recover $1,040.57, the agreed price for 1,600 30/34 bushels of malt, sold and delivered to defendant on June 28, 19l3, by one Max Shonthal. The answer denied the sale, the delivery, the price and non-payment. Further, as constituting a defense and a set-off, defendant alleged that the merchandise referred to in the complaint was part of 25,000 bushels of malt, purchased from Shonthal by agreement dated December 28, 1912; that defendant had duly performed, but that Shonthal had breached the agreement by failing, on demand, to deliver 13,330 bushels of malt then still due defendant and that, after the assignment to plaintiff, the agreement was again breached in similar fashion, all to defendant’s damage in a sum exceeding plaintiff’s demand.
    
      Arthur B. Hyman and Stanley M. Lazarus for appellant.
    
      Eugene Cohn and W. Smith O’Brien for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Chase, Collin, Hogan, Cardozo, Crane and Andrews, JJ..  