Katz v. Wolf

— The plaintiff furnished an estimate to do certain work on the defendant’s house for seventy-five dollars. He testified that he did all the work agreed to be doné, and received thirty dollars on account. The justice gave judgment in favor of the plaintiff for forty-five dollars, the balance due. ' Plaintiff also claimed eleven dollars for extra work, but this the justice disallowed. The question of performance was-decided on conflicting testimony; the plaintiff testifying oneway, and the defendant’s agent the other. The finding of the justice upon that disputed question of fact is sufficiently sustained by the evidence, and cannot be disturbed. Frankel v. Wolf, 7 Misc. Rep. 190 ; 57 St. Rep. 536 . The defendant made no motion to dismiss, and cannot now urge that the plaintiff did not make out a prima facie cause of action. Frankel v. Wolf, supra; Carroll v. O’Shea, 2 Misc. Rep. 437 ; 51 St. Rep. 579 .

The defendant claims that the justice erred in declining to allow her counterclaims. The first of these, for six dollars was properly disallowed, because the claim belonged to Fernback, defendant’s agent, and not to herself. The second arises out of a writing signed by the plaintiff, “whereby he agreed to deposit fifteen dollars with the defendant on furniture” which he was to purchase from her when he got married. The plaintiff was guilty of a breach of his agreement to deposit, but no damages arising therefrom were proved, nor could they be legally measured. ’The contract does not specify either the quantity or quality of the furniture, or its value in dollars and cents, or the character of the