
    BERGER, Appellant, v. COHEN, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    February 28, 1908.)
    Action by Louis Berger against Max Cohen.
   PER CURIAM.

In the absence of express stipulation on the subject, the parties must be deemed to have intended that the delivery of the plans by the plaintiff and the payment therefor by the defendant should be concurrent acts. The plaintiff proved the preparation of the plans and a tender thereof to the defendant upon payment of the plaintiff’s services therefor. The defense of nonperformance was, therefore, not available. Scott v. Miller, 114 App. Div. 6, 99 N. Y. Supp. 609. Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event.  