Majority
p. 148BOYD v. KLINGMAN et al. (Supreme Court, Appellate Term. November 21, 1900.) Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.
Headnote
Contracts—Failure of Performance—Allowance of Damages.Where plaintiff has failed to perform a portion of his contract, to defendant’s damage, the court, in rendering judgment for plaintiff on the contract, should deduct defendant’s damages.
Appeal from municipal court, borough of Manhattan, Tenth district.
Action by John Boyd against Frederick Klingman and another. From a judgment in favor of plaintiff, defendants appeal.
Reversed.
P. Hellinger, for appellants.
J. S. Strahl, for respondent.
It was part of the contract entered into between the plaintiff and the defendants that the plaintiff would furnish and set, including all Connections, an electric pump, complete, as specified, for $200, in addition to the contract price of $4,200 for other work that the plaintiff was to do for the defendants. The evidence conclusively shows that the plaintiff failed to perform this portion of his contract, and that the defendants were damaged by this failure to at least the extent of $75, but they were allowed nothing by the justice before whom the case was tried. This was error.
The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event.