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Huber v. Klebold Press

112 N.Y.S. 203 Court N.Y. App. Div. Decision date 1908-06-30 English

Delivered by MacLEAN, J.

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p. 203
HUBER v. KLEBOLD PRESS.
(Supreme Court, Appellate Term.
June 30, 1908.)

Headnote

Appeal and Error—Review—Findings bt Trial Court—Conclusiveness.
In an action for goods sold, where defendant alleged by way of counterclaim that it had agreed to print certain specimen sheets for plaintiff, the latter to furnish the ink, and that the inks were defective, a judgment dismissing the counterclaim will not be disturbed, where the court found that the extra work was not made necessary by any act of plaintiff.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3955-3969.]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Joseph M. Huber against the Klebold Press,_ in which defendant filed a counterclaim. From a judgment for plaintiff, and against defendant on its counterclaim, the latter appeals.
Affirmed.
This action is for the value of printing ink sold and delivered to defendant, the sale and delivery of which were not disputed; but defendant set up a counterclaim, alleging that at plaintiff’s request it agreed to print certain specimen sheets of printing inks for plaintiff, the ink to be furnished by plaintiff, but that by reason of plaintiff’s breach of contract defendant was put to an additional expense over the contract price—the alleged breach of contract being that plaintiff furnished improper and defective inks for use in printing, whereby defendant was compelled to expend more time and labor in printing than would otherwise have been necessary.
Argued before GIEDERSEEEVE, P. J., and MacEEAN and SEA-BURY, JJ.
Milton Damman, for appellant.
Douglas & Minton, for respondent.

Apart from the question of accord and satisfaction, in view of the denial of the treasurer of the defendant that the bill rendered to the plaintiff for extra work (the subject of its counterclaim) was ever returned, the check in full received and retained by the defendant may not be said to be an accord, there is no dispute as to amount due prior thereto. The Judgment dismissing the counterclaim may not be disturbed, as the trial- justice found that the extra work was not made necessary by any act or neglect on the part of the plaintiff. The claim of the plaintiff being otherwise admitted, the judgment should be affirmed.

Judgment affirmed, with costs. All concur.