Opinion
February 25, 1952.
Present — Carswell, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ. [See post, p. 1009.]
Action to recover payments made by plaintiff to defendants in pursuance of a contract under the terms of which defendants undertook to "endeavor" to perfect a cigar wrapping machine, the claim of plaintiff being that defendants' "endeavors" had not been successful. Defendants counterclaimed for a balance due on the contract. Plaintiff appeals from a judgment rendered after trial, dismissing the complaint and awarding a recovery to defendants on their counterclaim. Judgment unanimously affirmed, with costs. The contract provided for payment to defendants on a basis of time consumed and material furnished and contained a clause giving plaintiff the right to stop the work at any time.