
    De Grasse Paper Company, Respondent, v. Northern New York Coal Company, Appellant.
    
      Contract — action for breach of alleged contract to deliver coal — defense of reduced production by causes beyond seller’s control.
    
    
      De Grasse Paper Co. v. Northern N. Y. Coal Co., 206 App. Div. 789, affirmed.
    (Argued May 15, 1924;
    decided June 3, 1924.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 5, 1923, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages for breach of a written contract between the parties by which the defendant agreed to sell and the plaintiff to buy 15,000 to 20,000 tons of nut coal and an equal quantity of mine run coal, over a ten months’ period of deliveries from June 1, 1916, to April 1, 1917. The defendant delivered approximately 12,600 tons of nut coal and 6,300 tons of mine run coal, and the plaintiff sought to recover the difference between the contract and the market price of the amount of coal for which the defendant was in default. The amended answer set up as a defense that the plaintiff had violated a provision in the contract requiring payment for deliveries in cash thirty days from the date of invoice, or on the fifteenth of each month for all shipments made the preceding month and that if the defendant failed to deliver any coal under the contract it was due to the causes specified in article 6 thereof as beyond the control of the defendant, and so was an excusable default. A further defense was that there existed a usage in the coal business, binding on the plaintiff, justifying the apportioning of coal to holders of contracts when production is reduced by causes beyond the seller’s control.
    
      Henry Purcell and Nash Rockwood for appellant.
    
      John G. Jackson and Delos M. Cosgrove for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, Mo Laitghlin, Crane, Andrews and Lehman, JJ.  