Majority
p. 967Antonio Difuria, Respondent, v. Lulu J. Wallace, Appellant.
Judgment and order reversed and new trial granted, with costs to appellant to
p. 968
abide event. Held, that the evidence presented a question of fact as to the refusal of the defendant to perform, thereby relieving the plaintiff from the tender of the purchase price, and that the credibility of the plaintiff’s testimony, under the circumstances of this case, was for the jury. (See Mendoza v. Levy, 111 App. Div. 449 , and cases cited.) All concurred.