Majority
Headnote
Appeal from Municipal Court, Borough of Manhattan, First District. Action by Charles Schlesinger and another, doing business under the firm name and style of Schlesinger & Gilman, against the O’Connor Construction Company. . From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Modified and affirmed. Francis X. Kelly, of New York City, for appellant. Nathan Friedman, of New York City, for respondents.The plaintiffs brought this action to recover a balance unpaid upon a contract to make and set the metal work and roofings on buildings owned by the defendant. The defendant denies that the contract was fully performed, and counterclaims for the damages occasioned by the plaintiffs’ failure to comply with the terms of the contract. At the trial the defendant introduced evidence of very substantial defects, which the plaintiffs denied, and, though the testimony produced by the defendant seems persuasive, I do not think that it is sufficient to enable us to say that the trial justice, who saw the witnesses, was bound to hold that these defects existed to the extent claimed by the defendant. The defendant showed that it cost it $230 to remedy the defects, but the trial justice decided that it was entitled to an offset of only $80, apparently holding that the reasonable cost of repairing the actual defects was only; this sum. The trial justice, however, erred in giving judgment for $240, thus holding that, but for these defects, the plaintiffs would have been entitled to recover $320, when both pleadings and proof show a claim of only $300.
The judgment must therefore be reduced to $220, and affirmed, as modified, without costs to either party. All concur.