Judgment of conviction rendered in the Court of Special Sessions of the City of New York, Borough of Queens, convicting appellant of a violation of section 188 Agric. Mkts. of the Agriculture and Markets Law reversed on the law, information dismissed and fine remitted. Section 188 Agric. Mkts. of the Agriculture and Markets Law contemplates a delivery of merchandise which is less in quantity than that represented, although such delivery may be conditioned upon payment. ( People v. Kaminsky, 245 App. Div. 768; People v. Abruzzese, 254 id. 709; affd., 278 N.Y. 411; People v. Berman, Id. 408.) The proof in the case at bar shows not only that no delivery was made but that no sale had been consummated. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.