
    Adolph Simpson, Joseph Simpson and Samuel Simpson, Copartners, Trading under the Firm Name and Style of Simpson Bros., Plaintiffs, Respondents, v. Cafe La Vie, impleaded with Peek Inn, Inc., Defendant, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 13, 1924.
    Contracts — action to recover under contract — burden of showing nonperformance is upon party claiming to have performed substantially.
    In an action under a contract the burden of showing the extent of the nonperformance is upon the party claiming to have performed substantially.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiffs, after trial by the court,
    
      
      Samuel J. Siegel, for the appellant.
    
      J oseph Rubin, for the respondents.
   Per Curiam.

The burden of showing the extent of the nonperformance was upon the party claiming to have performed substantially. Spence v. Ham, 163 N. Y. 220.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.  