
    Samuel B. Barnard, Appellant, v. General Aviation Equipment Co., Inc., Respondent.
   Per Curiam.

If, as we are inclined, we accept the defendant’s interpretation/’ that the contract between the plaintiff, the defendant and the Wyoming Valley Industrial Development Fund, Inc., was not a contract of employment, the plaintiff nevertheless established a prima facie cause of action. The plaintiff established nonperformance of the contract by the defendant and that he was in possession of the certificates of stock under option to Wyoming Valley Industrial Development Fund, Inc. The jury could have found that the plaintiff’s failure to deliver the certificate in escrow, duly indorsed, was waived by the defendant.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Martin, P. J., Townley,.Glennon, Untermyer and Dore, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.  