Because of the decision of the General Term of this court herein, 14 Misc. Rep. 443, upon this appeal we .are limited to a consideration of the question whether or not the defendant actually paid to the plaintiff any part of the sum ef ten hundred and forty-five dollars ($1,045) sued for herein.
There' is certainly no'- evidence of any ■ such payment, the defendant merely contending that the sixth clause of the agreement made between the parties hereto, and upon which this action is based, only required the payment of the sum of twenty-five hundred dollars ■ ($2,500) per year until the expiration of the term (viz., five years from date thereof) mentioned in such agreement, when an accounting might be required and the balance over twelve thousand and five'hundred dollars' ($12,500), if any there-,was found to be due, should be paid.
That contention in said former appeal, as we have said, was passed upon adversely to the defendant.
Therefore, we must affirm the judgment herein, with costs. -
Van Wyok-, Ch. J., concurs.
Judgment affirmed, with costs.