
    E. Heller & Brother, Appellant, v. Continental Mills, Respondent.
    
      Contract — sale of merchandise to he delivered in weekly installments to he paid for within ten days after delivery ■—■ when failure to make payments as stipulated justifies seller in declining to make further deliveries.
    
    
      Heller & Brother v. Continental Mills, 196 App. Div. 7, affirmed.
    (Argued April 28, 1922;
    decided May 12, 1922.)
    Appeal from a judgment, entered April 8, 1921, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing judgment in favor of defendant. The action was for the breach of a contract for the sale and delivery of merchandise in weekly installments for which payment was to be made for each installment “ within ten days after delivery.” The complaint alleged as the breach of the contract “ that after the delivery aforesaid, to wit, on May 22, 1919, defendant refused, neglected and failed to make any other or further deliveries and notified plaintiff that it would refuse to deliver the balance of the said cloth.” The defense was that defendant had delivered four installments of merchandise and that in each instance plaintiff had failed to pay for same within ten days as stipulated in the contract.
    
      Dudley F. Sicker and James Garfield Moses for appellant.
    
      Francis X. Carmody and Franklin D. Peale for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  