
    Thomas Dwyer, Respondent, v. Interborough Rapid Transit Company, Appellant.
    
      Contract — action for breach of contract whereby plaintiff was to erect elevaied railroad stations —failure of defendant to complete preliminary structure on which stations were to be placed.
    
    
      Dwyer v. Interborough B. T. Co., 209 App. Div. 807, affirmed.
    (Argued December 15, 1925;
    decided January 12, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 9, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for breach of contract, by the terms of which plaintiff agreed to erect three stations on the Webster avenue elevated railroad of defendant within five months after notice from defendant’s engineer to commence work. On January 9, 1918, plaintiff received the said notice but defendant failed to erect the steel structure on which the stations were to be placed and at no time during the five months following said notice was such structure erected so that plaintiff could build the stations as provided in the contract.
    
      Henry J. Smith, Frederick G. Watson and James L. Quackenbush for appellant.
    
      M. Carl Levine for respondent.
   Judgment affirmed, with costs; no opinion.

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