
    L. Howell Davis et al., as Executors of and Trustees under the Will of Lemuel H. Davis, Deceased, Appellants, v. Malcolm N. McLellan, Respondent.
    
      Contract — option to purchase land — action to recover for breach of alleged agreement to prospect such land for mineral deposits.
    
    
      Davis v. McLellan, 206 App. Div. 740, affirmed.
    (Argued January 15, 1924;
    decided February 19, 1924.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 8, 1923, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover damages for the alleged breach by defendant of a written contract. The complaint alleged that on June 15, 1911, plaintiffs’ testator, Lemuel H. Davis, and the defendant entered into a written agreement whereby defendant was granted an option to purchase 3,197 acres of land in De Soto county, Fla., for $250,000, and that as part of the consideration defendant agreed to make or cause to be made such an investigation or prospect of said land as would fully reveal the existence or non-existence of workable deposits of phosphate thereon; that defendant did not make such investigation or prospect, and that plaintiffs’ testator had thereby suffered damage. The answer denied the making of any such agreement, admitted that defendant had never made any prospect or investigation, and set up as a separate defense that the alleged option agreement was executed by the defendant solely as the agent and in behalf of plaintiffs’ testator, without any consideration, and solely for the purpose of enabling the defendant to procure some person or corporation to accept an assignment of said option and agree to make the investigation and prospect in question, and that defendant was unable to procure any one to accept said option or agree to perform its condition, and never assigned the same.
    
      Lewis R. Conklin for appellants.
    
      Harry N. Selvage for respondent.
   Judgment affirmed, with costs; no opinion.

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