Majority
p. 618LEVIN v. HENDELMAN et al. (Supreme Court, Appellate Term. December 12, 1907.) Argued before GILDERSLEEVE, P. J., and GUY and BRUCE, JJ.
Headnote
Contracts—Partial Performance.The price which one was to receive for the making of garments for another must be reduced by the amount it cost the latter to complete the work which the former should have done, but failed to do.
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Hyman Levin against Karl Hendelman and another. From a judgment for plaintiff, defendants appeal. Modified and affirmed.
Max Salomon, for appellants.
Moses H. Rothstein, for respondent.
By evidence which the court below deemed worthy of credence, the plaintiff showed that he would have been entitled to recover the sum of $24 for work done for the defendants in making a lot of six garments, and upon another lot of seven garments the sum of $24.50, making in all the sum of $48.50, had he fully completed the work given him to do. It is uncontradicted, however, that these garments cost the defendants on the first lot $4.50, and on the second lot $3.85, in all $8.35, to complete the work which the plaintiff should
p. 619
have done. As to a third lot claimed to have been done by the plaintiff, it appears by his own testimony that he simply took the lot from one shop to another, but was not allowed to do any work upon the same. The judgment rendered was for $55.50 in favor of plaintiff. As the testimony appears, the defendant was entitled to recover but $40.15.
Judgment modified, by reducing the same to $40.15, with appropriate costs and $5 extra costs in the court below, and, as modified, affirmed, without costs of this appeal.