
    The City of New York, Appellant, v. Nicholas Vassiliou, Respondent.
    
      Municipal corporations — New York city — contract — action by city to recover for failure to execute contract on bid for concession — counterclaim for amount of deposit.
    
    
      City of New York v. Vassiliou, 223 App. Div. 753, affirmed.
    (Argued June 20, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 19, 1928, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover damages sustained by plaintiff by reason of the failure of defendant to execute an agreement in accordance with his bid for the privilege of conducting a fruit and flower stand at the Manhattan Terminal of the Staten Island Ferry. The defendant counterclaimed for the amount of his deposit to secure the bid. The trial court charged the jury that the city had failed in its obligation to present to the defendant an executed lease or agreement to secure to him, prior to the commencement of the term, the enjoyment of the privilege, and left it to the jury to determine whether defendant had waived that requirement.
    
      George P. Nicholson, Corporation Counsel (Elliott S. Benedict and J. Joseph Lilly of counsel), for appellant.
    
      Emanuel Friedman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ. Not sitting: Crane, J.  