The judgment in favor of plaintiff is not supported by the record. Plaintiff by his testimony shows that he received the first payment for the portrait from James Mont, and that he looked to Mont for the balance; he had his secretary, Zadora (whose testimony was not offered and whose failure to testify was not explained), make demand upon Mont for payment and when Zadora*505reported by cable that Mont had the money, plaintiff’s response was a request to have Mont deposit that money in the bank in plaintiff’s name. Defendant’s evidence, in the absence of any testimony to the contrary by Zadora or the truckman, showed that when the portrait was finished in April, 1934, it was delivered by Zadora to Mont. The undisputed proof shows that plaintiff received the payment of $500 from Mont and executed a written receipt to him therefor on May 11, 1934; that Mont’s bankruptcy proceeding was started in November, 1934; that his schedules were amended on December 11, 1934, to show indebtedness to plaintiff of $4,000 for services performed, and that the first time plaintiff requested payment from defendant was in the spring of 1935, about a year after the work had been completed, and several months after receipt by plaintiff of notice of Mont’s bankruptcy proceeding. The credible evidence supports defendant’s claim that the portrait was painted under an arrangement between defendant and Mont which has been carried out. The proof fails to establish any agreement between plaintiff and defendant.
The judgment should be reversed, with costs, ana the complaint dismissed, with costs.
Present — Martin, P. J., McAvoy, O’Malley, Untermyer and Cohn, JJ.
Judgment unanimously reversed, with costs, and the complaint dismissed, with costs.