Conover v. Lennon — 46 N.Y. St. Rep. 18

Majority

p. 18

David Conover, Resp’t., v. William F. Lennon, Appl’t.

(City Court of New York, General Term,

Filed March 10, 1892.)

Headnote

Contract—Counterclaim—Lost rents.

In an action on a building contract, a counterclaim for lost rents caused by plaintiff’s delay is properly rejected where there is no proof that there were any applicants for rooms during the period of such delay.

Appeal from judgment in favor of plaintiff.

James Kearney, for app’lt; William H. Gardner, for resp’t.

There is abundant evidence in this case to sustain the finding that the “ lathing ” was not included in the contract for “plastering.” In fact the testimony of plaintiff shows that he had a special agreement with defendant concerning the “lathing,” which agreement the trial justice chose to believe was entered into between plaintiff and defendant.

He was also justified in finding that the plaintiff performed his work in a reasonable time, besides I think that defendant’s counter-claim for alleged lost rents was not sustained; he merely testifies that he was delayed by the alleged failure of plaintiff to speedily finish his work for one month, and charged plaintiff for loss of rents for that month about $1,250.

There is no testimony tending to show, for the period for which he makes this claim, that there were any' applicants for rooms in said houses; therefore the trial justice was justified in excluding that claim. As to all the other alleged counterclaims, the testimony concerning them was contradictory and conflicting; the plaintiff’s testimony was believed, and the defendant’s disbelieved, and rightfully so, we think.

After carefully reading the testimony, we are convinced that the judgment was a just one, and, finding no errors, said judgment is affirmed, with costs.

Ehrlich, Oh. J., concurs.