
    First Department,
    March, 1948.
    (March 1, 1948.)
    Edith Sackheim, Appellant, v. Miki Berger, Respondent.
   Per Curiam.

The main question presented on this appeal concerns the propriety of the judgment granted on the counterclaim. Defendant claimed damages for breach of contract on plaintiff’s part of an order for certain flat coiled rings; plaintiff claims that no order was ever given and that no oral contract was ever made. On defendant’s own testimony it is shown that no oral contract, complete as to its terms, was entered into. Defendant relied on a written order which coneededly was never signed by plaintiff and was inadmissible, on objection, as not in compliance with the requirements of the Statute of Frauds. To take the case out of the Statute of Frauds, defendant urged that there had been both partial delivery and partial payment of the order. It is clear, however, that the samples which were delivered prior to the supposed date of the purchase order could not have been delivered in satisfaction of part performance of the contract. It is also obvious that the money paid was on account of an existing debt and had no reference to a contract the terms of which never had been agreed to.

The judgment, so far as appealed from, should be reversed, with costs to the appellant, the counterclaim dismissed and the judgment directed in favor of the plaintiff as demanded in the complaint, with costs.

Peek, P. J., Cohn, Callahan, Van Voorhis and Shientag, JJ., concur.

Judgment, so far as appealed from, unanimously reversed, with costs to the appellant, the counterclaim dismissed and judgment directed in favor of plaintiff as demanded in the complaint, with costs. Settle order on notice.  