
    Wenalden Company (Substituted for John T. Pirie, Deceased), Respondent, v. Joseph H. Emery, Appellant.
    (Argued March 18, 1915;
    decided April 13, 1915.)
    
      Pirie v. Emery, 153 App. Div. 899, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 10,1912, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action to recover upon a promissory note. The defense was that delivery of the note in suit was conditional; that plaintiff had agreed to make a loan to one Devlin in the sum of $65,000, and that it was agreed between the parties hereto that the note in suit should be of no force and effect unless and until such loan was made; that plaintiff upon receipt of said note from defendant refused to make such loan; that the consideration for the note wholly failed; and that thereupon the agreement between plaintiff and defendant was rescinded and canceled.
    
      David H. Miller and Louis Werner for appellant.
    
      Ernest P. Hoes and Frank L. Hall for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Ch. J., Collin, Cuddeback, Hogan and Seabury, JJ. Not sitting: Miller and Cardozo, JJ.  