
    Neil & Parmelee Co., Inc., Respondent, v. John Kitchin, Appellant, Impleaded with Another, Defendant.
   Judgment of Monroe County Court and of City Court reversed on the law, with costs, and plaintiff’s complaint dismissed, with costs in all courts. It is undisputed that the plaintiff broker, disobeyed the instructions of the defendant by delivering the sale contract without requiring the purchaser to make a deposit of $500. The action is upon an express contract which required such deposit and that fact is admitted by the plaintiff. The plaintiff is in the position of suing upon an express contract containing an important condition which it has not fulfilled and which it does not allege or prove that defendant waived. All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.  