• I concur because there is no allegation of negligence in the complaint, it sounding on contract only. If there were, we would have before us the question whether the failure to deliver does not ■ in and of itself make out a prima facie case of negligence.
Woodward, Jenks and Hooker, JJ., concurred in both opinions.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.