Drescher-Rotberg Co. v. Strauss — 145 N.Y.S. 280

Majority

p. 280

DRESCHER-ROTBERG CO. v. STRAUSS.

(Supreme Court, Appellate Term, First Department.

December 30, 1913.)

Headnote

Sales (§ 348*)—Action tor Price—Counterclaim—Judgment. Defendant not having paid the balance of the contract price for putting in fixtures, sued for, is entitled, under his counterclaim for insufficiency in the work, to judgment only for the cost of making good the insufficiency, less such unpaid balance.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 973-986; Dec. Dig. § 348.*]

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by the Drescher-Rotberg Company against Lawrence L. Strauss. From a judgment, in substance, dismissing the complaint, and granting judgment to defendant on a counterclaim, after a trial without a jury, plaintiff appeals. Modified and affirmed.

Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

Benjamin I. Shiverts, of New York City, for appellant.

Strasbourger, Eschwege & Schallek, of New York City, for respondent.

This action is brought to recover for a balance of $39.46 for the repairing of gas fixtures which were converted into electroliers' in defendant’s apartment house. Defendant claimed that the work was not properly done; in part, because the electroliers were hung so high that it was necessary to install chain sockets to enable the lights to be turned on and off.

The learned judge below gave the defendant a judgment for $100 on his counterclaim. On a careful reading of the evidence, however, it is apparent that defendant’s superintendent testified that to make good the insufficiency of plaintiff’s work required 16 sockets in each of 18 apartments, and plaintiff’s president stated in court that the sockets were worth 25 cents apiece, a total, therefore, of $72. Defendant, however, was entitled to recover only the difference between the contract price and the amount necessary to put the fixtures in such condition as they would have been had the .contract been carried out. As he admitted that he did not pay plaintiff the balance, $39.36, of the contract price, that amount must be deducted from the $72.

Judgment modified by reducing the same to the sum of $32.64, with appropriate costs in the court below, and, as so modified, affirmed, without costs to either party of this appeal. All concur.