Filling v. Henry Steers, Inc.

Judgment affirmed, with costs. No opinion. Lazansky, P. J., Young and Davis, JJ., concur; Carswell and Scudder, JJ., dissent and vote for reversal on the ground that after selling all the fill to defendant the plaintiff removed or- permitted to be removed a substantial portion of the fill and thereby breached the contract and became unable on its part to perform. It, therefore, cannot recover for the breach of defendant.