The proof sufficiently supported defendant’s contentions with respect to its defense that the goods were purchased with the right to return all goods not resold. It was error, however, to permit it to recover affirmative judgment, for the reason, among others, that an agreement made by a distributor to give a “ rebate ” on unsold goods in case of reduction of the list prices issued by the manufacturer does not require the distributor to allow a rebate because it fixed new prices on like goods which it bought from the receiver of the manufacturer after the latter ceased doing business.
Judgment modified by striking out the award on the counterclaim, and as modified affirmed, without costs of appeal to either party.
Appeal from order dismissed.
All concur; present, Levy, Callahan and Untermyer, JJ.