Majority
p. 898Samuel Kaplan and Others, Copartners, etc., Appellants, v. David Feinstein and Another, Copartners, etc., Respondents.
Judgment and order reversed and new trial granted, costs to abide the event, on the grounds, first, that it affirmatively appears that the terms of the composition agreement were varied from by the defendants without the consent of the plaintiffs, and it does not appear that plaintiffs waived strict performance thereof; and second, there is not a fan- preponderance of evidence of tender of performance of such agreement to plaintiffs on the part either of defendants or the United Hovelty Company. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred.