
    Sherman A. Genung, Respondent, v. Ross M. Turner, Appellant.
    
      Contract — action to recover on alleged contract for sale of bonds and stock — defense of refusal to perform.
    
    
      Genung v. Turner, 198 App. Div. 953, affirmed.
    (Argued December 5, 1922,
    decided January 9, 1923.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 29, 1921, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The complaint alleged that the defendant agreed to sell to the plaintiff thirty-two bonds each of the par value of $500 of the Connecticut Zinc Company, a corporation, and 640 shares of the capital stock of said corporation for the sum of $16,000; that the plaintiff agreed to make his promissory notes in the aggregate sum of $16,000 and that when said notes were paid the said bonds and a certificate for said shares of stock should be delivered to the plaintiff; that the plaintiff delivered to the defendant his promissory notes in the said sum of $16,000 which were received and accepted by the defendant; that thereafter the parties agreed that a portion of said notes amounting to $5,000 should be returned to the plaintiff without payment and that the number of said bonds and shares of said stock to be delivered to the plaintiff should be reduced proportionately to twenty-two bonds and 440 shares of stock and that accordingly said notes amounting to $5,000 were returned to the plaintiff and canceled; that the plaintiff has paid all of the remainder of said notes amounting to $11,000 and has performed all the conditions of said contract on his part; that he has demanded of the defendant delivery of $11,000 par value of bonds and the same amount of par value of the stock. The defendant by his answer denied the allegations of the complaint and alleged a tender of performance on his part of the contract alleged in the complaint and a refusal on the part of the plaintiff to perform the same.
    
      Selden Bacon and Theodore. F. Van Dorn for appellant.
    
      Harvey D. Hinman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  