Judgment reversed upon the law, with costs, and complaint dismissed, with costs. The evidence herein does not establish the special agreement sued upon, nor does it establish a breach of such a special agreement by defendants after a performance thereof on the part of the plaintiff, there being no proof of tender of performance by the plaintiff. In view of this disposition of the ease, the appeal from the order denying a motion for a new trial is dismissed. Lazansky, P. J., Hagarty, Carswell, Tompkins and Davis, JJ., concur.