
    First Department,
    December, 1925.
    Adolph Kaempfer, Respondent, v. Tompkins-Kiel Marble Co., Inc., Appellant.
    Appeal from an order of the Supreme Court, made at the New York Special Term and entered in New York county clerk’s office April 3, 1925, denying defendant’s motion for judgment on the pleadings.
    Order affirmed, with ten dollars costs and disbursements. No opinion. Present — Clarke, P. J., Merrell, Finch, Martin and Burr, JJ.; Merrell and Finch, JJ., dissent.
   Finch, J.

(dissenting). I dissent. There was no obligation to order any marble if none was required. In that event, the remedy of the plaintiff was expressly fixed by the terms of the contract, namely, to cancel the contract. Merrell, J., concurs.  