
    Niagara Alkali Company, Appellant, v. Champion Coated Paper Company, Respondent.
    
      Niagara Alkali Co. v. Champion Coated Paper Co., 161 App. Div. 67, affirmed..
    (Argued January 27, 1916;
    decided February 22, 1916.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 25, 1914, in favor of defendant upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The plaintiff and defendant entered into a written agreement for the sale of muriatic acid. By said agreement the plaintiff was to ship 500 empty carboys to remain without charge in the defendant’s possession during the life of said contract, which carboys were to he used by the defendant for the storage of muriatic acid. The contract provided: “These carboys to be returned at the end of contract term, and all carboys not so returned to be paid for by buyer at $2.00 each.” The contract term expired and the defendant failed to return 470 of the carboys which the plaintiff had sent it or pay for the same. These carboys were destroyed by a flood, and the defendant’s contention is that it is, therefore, excused from either returning the carboys or paying for them according to the terms of the contract.
    
      Parton Swift for appellant.
    
      Harry T. Klein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Chase, Hogan and Pound, JJ. Dissenting: Willard Bartlett, Ch. J., Cuddeback and Cardozo, JJ.  