
    CROSS, AUSTIN & IRELAND LUMBER CO. v. HADDEN et al.
    (Supreme Court, Appellate Division, Second Department.
    December 5,1913.)
    Appeal from Special Term, Queens County. Action by the Cross, Austin & Ireland Lumber Company against Archibald Had-den and others. From a judgment in favor of plaintiff, defendants Archibald Hadden and the A. Hadaen Company appeal. Reversed in part, and new trial granted.
    David Goldstein, of New York City, for appellants.
    C. W. Wilson, Jr., of Brooklyn, for respondent Cross, Austin & Ireland Lumber Co. Rufus L. Weaver, of New York City, for respondent Bayside Lumber Co.
   PER CURIAM.

It was not proven that the contractor so far fulfilled his contract as to entitle him to the payment of $1,000, or that Hadden unduly refused to make the payment, or that the failure of the contractor to perform was inadvertent, or that any sum is due the contractor. So far as the findings, particularly sixth to thirteenth findings of fact, otherwise ■decide, they are not in accordance with the •evidence, and the judgment should be reversed, nnd a new trial granted; costs to abide the final award of costs.  