
    Anthony Mazzeo, Appellant, v. Berkeley Motor Sales, Inc., Respondent.
    Supreme Court, Appellate Term, Second Department,
    December 15, 1944.
    
      
      Bernard Rolnick and Nathan F. Lazarus for appellant.
    
      Samuel Fingerhut for respondent.
   Memorandum

Per Curiam.

In the absence of any claim by defendant of mutual cancelation of the contract or inability through no fault of its own to make delivery, there is no legal basis for an award of $25 to plaintiff. Both- parties asserted readiness and ability to perform. If plaintiff breached the contract he was entitled to nothing. If defendant refused to perform, plaintiff was entitled to recover the sum of $250. (Genovese v. Lenobel, Inc., 154 Misc. 91.) The written agreement provided that $250 was the allowance for the used car. That sum would have been deducted from the contract price had the deal been consummated. If plaintiff was ready and able to perform, since because of Federal regulations there was no other car that he could get, he could recover the sum fixed as an allowance. On the other hand, if he refused delivery, no award should have been made to him.

The judgment should be reversed on the law and new trial granted, with thirty dollars costs to plaintiff to abide the event.

MacCrate, Smith and McCooey, JJ., concur.

Judgment reversed, etc.  