
    Archibald McNeil, Jr., Appellant, v. Monroe M. Goldstein, Respondent.
   Appeal from judgment entered on a decision after trial at Trial Term without a jury, dismissing the complaint on the merits and awarding defendant recovery of $24,722 on his counterclaim. The complaint alleged two causes of action on promissory notes made in Florida, each for $11,666.67, one payable in one year, the other in two years. At the close of the trial the court granted plaintiff’s motion to amend the pleadings to conform to the proof by alleging a breach by defendant of a contract for the purchase of real property. The answer alleged as a defense and counterclaim that defendant was induced to enter into said contract, pay a deposit of $15,000 and make the notes, by false representations of the plaintiff as to development of adjoining property. It also set up the defense of the Statute of Frauds. Judgment affirmed, with costs. No opinion. Present — Martin, P. J., Merrell, Townley, Glennon and Untermyer, JJ.; Untermyer, J., dissents from so much of the judgment as awards judgment in favor of the defendant on the counterclaim, upon the ground that the defendant’s failure to pay the note due on August 21, 1926, relieved the plaintiff from the necessity of acquiring title to the property for tender to the defendant on the date of closing, and that the defendant failed to establish affirmatively that on August 21, 1926, the plaintiff could not have performed the contract if the defendant had performed.  