Isaac Brown, Appellant, v. Louis Mader, Respondent

Isaac Brown, Appellant, v. Louis Mader, Respondent. Second Department, June 21, 1907. , Damage — counterclaim for cost of completing contract. In an action to recover for a sum due on a contract for work, labor and services, the defendant is not entitled to a judgment on a counterclaim for the cost of completing the contract for the same must he deducted from the contract price: Appeal by the- plaintiff, Isaac Brown, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered oil the 5th day of March, 1906. Adolph Feldblum, for the appellant. Francis A. MoCloskey, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The plaintiff sued to recover a balance of eighty dollars claimed to be due on a painting contract, and twenty-six dollars and thirteen cents for extra work. The answer was a general denial and a counterclaim of one hundred and fifty dollars for breach of contract. On the trial the defendant claimed that the plaintiff had not completely performed his contract, and certain hearsay testimony was admitted to the effect that it would cost eighty-five dollars to complete the work. The Municipal Court gave the defendant judgment on the counterclaim for fifty dollars damage's,, and the plaintiff appeals. The appellant insists 'that the trial court erred in finding that the plaintiff had not substantially performed, but -it is unnecessary to consider this question, because in any view of 'the case the judgment cannot be supported. The judgment compels the plaintiff to give the -défendant the work done and to pay for finishing it. If the defendant was entitled to damages on his counterclaim, those damages would nbt be the cost of completing the contract except allowance were made to the plaintiff for the contract price. The judgment should be reversed, .' Hirschberg, P J., Woodward, Jenes arid Hooker, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.