Benjamin D. Berg, Respondent, v. Just Because, Inc., Appellant. (Action No. 2.)

Benjamin D. Berg, Respondent, v. Just Because, Inc., Appellant. (Action No. 2.) First Department, April 6, 1923. See headnote in. Berg v. Just Because, Inc., No. 1 (ante, p. 31). Appeal by the defendant, Just Because, Inc., from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York, on the 10th day of November, 1922, affirming- a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Third District, in favor of the plaintiff. A. Spotswood Campbell, for the appellant. Bickerton, Wittenberg & Fleisher [Philip Wittenberg of counsel], for the respondent. [MAJORITY — Smith, J.:] Smith, J.: This action is for the recovery of subsequent installments under the same contract involved in action No. 1, between the same parties. (Berg v. Just Because, Inc., No. 1, 205 App. Div. 31.) Following the conclusion reached in action No. 1, decided herewith, the determination of the Appellate Term and the judgment of the Municipal Court should be reversed and the complaint dismissed, with costs in all courts. Dowling, Meeeell, Finch and McAvoy, JJ., concur. Determination of Appellate Term and judgment of Municipal Court reversed and complaint dismissed, with costs to appellant in all courts.