Appeal from an order and judgment of the Trial Term, Supreme Court, Sullivan County. Plaintiff has not established on this record a right to recover the deposit under the terms of the escrow agreement. We reach this conclusion as a matter of law; and it thus becomes unnecessary to deal in detail with the procedural questions arising from the course followed upon the trial. In any event the proceeding at the trial was adopted with the assent of the parties. Order and judgment unanimously affirmed, with costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.