
    Herbert Kandell, Appellant, Respondent, v. American Beverage Corporation, Respondent, Appellant.
   On plaintiff’s appeal, order setting aside verdict in favor of plaintiff and granting a new trial unanimously affirmed, with costs. Defendant’s cross-appeal from order denying its motion to dismiss the complaint dismissed, without costs. Defendant, a manufacturer of beverages, entered into a contract with plaintiff as a distributor. On plaintiff’s own testimony and that of defendant’s sales manager, which was uneontradieted, plaintiff breached a material term of the contract by selling goods delivered to him for free distribution for advertising and sales promotion purposes, and retaining the proceeds of such sales. Apart from the question whether or not plaintiff voluntarily abandoned the contract, this breach by plaintiff was sufficient to warrant his discharge. (Getty v. Williams Silver Co., 221 N. Y. 34.) In no event, therefore, could plaintiff recover. The motion to dismiss the. complaint should have been granted. On this record, however, we can do nothing but affirm the order setting aside the verdict and granting a new trial, and dismiss the appeal from the other order, which was made upon a ruling upon the trial and is not appealable. (Stephansen v. County of Westchester, 257 App. Div. 1050.) Present — Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ.  