
    The R. & L. Company, Appellant, v. Herman A. Metz, Respondent.
    
      It. & L. Company v. Metz, 175 App. Div. 276, affirmed.
    (Argued October 2, 1916;
    decided October 17, 1916.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1916, which affirmed an order of Special Term overruling a demurrer to new matter set up in defendant’s amended answer. The defense interposed and demurred to sets up the Statute of Frauds, in that the “ alleged agreement mentioned and described in the first cause of action set forth in the complaint was for the sale of goods at a price of more than fifty dollars; that neither the said agreement nor any note or memorandum thereof was ever made in writing and subscribed by this defendant, who is sought to be charged therewith, or by his lawful agent, nor did this defendant at the time of the alleged sale accept or receive any part of the said goods, nor did this defendant at the times mentioned in said alleged first cause of action pay any part of the purchase money of the goods therein described.” The sole question presented on this appeal is whether the complaint alleges a sale of goods.
    The following question was certified: “Is the defense contained in the amended answer to the alleged cause of action set forth in the complaint herein sufficient in law apon the face thereof ? ”
    
      Henry A. JRubino and Bernard A. ShaleJc for appellant.
    
      Isaac II. Levy for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

Concur: Willard Bartlett, Oh. J., Hiscook, Chase, Ohddebagk, Hogan and Pound, JJ. Not sitting: Cardozo, J.  