Robert C. McLane et al., Respondents, v. Anthony De Leyer, Appellant

Robert C. McLane et al., Respondents, v. Anthony De Leyer, Appellant. (Argued February 18, 1874; decided February 27, 1874.) This was an action to recover balances alleged to he due upon several contracts for building the walls, etc., of a distillery. Defendant set up as a counter-claim, a claim for damages resulting from the defective and unworkmanlike manner of doing the work under one of the contracts. By it plaintiff was to furnish all the materials, but it was provided that the sand should be taken from the premises. The referee found that this sand was used for the mortar but was unfitted for the purpose, and the defect in the walls complained of was caused by using it. Defendant was informed of the improper quality of the sand by plaintiffs, but directed its use. The walls had to be taken down and re-erected. Held, that defendant was not entitled to recover damages. Francis Byrne for the appellant. W. McDermott for the respondents. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.