
    Hattie C. Schoeller, Respondent, v. William P. Schoeller, Appellant.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal court of the city of Mew York, ninth district, borough of Manhattan.
    H. Levor, for appellant.
    T. W. McKnight, for respondent.
   Per Curiam.

It plainly appears that there was a verbal agreement made January 11, 1900, for a sale by the defendant to the plaintiff of his bakery for the sum of five hundred dollars, the defendant and his brother to bind themselves not to engage in like business within a limited territory for one year. The plaintiff then paid fifty dollars on the purchase price, and was to pay the balance on the Saturday following, which she was ready and ■willing then to do, but the defendant, without legal reason, declined to perform. These facts are found by the verdict of the jury. The exceptions to the allowance by them of the items beyond the payment of fifty dollars, are not well taken, because they were properly incurred by plaintiff in preparing to perform her part of the undertaking, except the lawyer’s fee of ten dollars, for which the defendant was not to be held liable in any event.

The judgment will be affirmed if reduced by the sum of ten dollars, if not it will be reversed and a new trial ordered, with costs to abide the event.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

■ Judgment affirmed if reduced by ten dollars, if not judgment reversed and.new trial ordered, with costs to abide event.  