Drescher-Rotberg Co. v. Strauss ( 1913 )

BIJUR, J.

This action is brought to recover for a balance of $39.46 for the repairing of gas fixtures which were converted into electroliers' in defendant’s apartment house. Defendant claimed that the work was not properly done; in part, because the electroliers were hung so high that it was necessary to install chain sockets to enable the lights to be turned on and off.

The learned judge below gave the defendant a judgment for $100 on his counterclaim. On a careful reading of the evidence, however, it is apparent that defendant’s superintendent testified that to make good the insufficiency of plaintiff’s work required 16 sockets in each of 18 apartments, and plaintiff’s president stated in court that the sockets were worth 25 cents apiece, a total, therefore, of $72. Defendant, however, was entitled to recover only the difference between the contract price and the amount necessary to put the fixtures in such condition as they would have been had the .contract been carried out. As he admitted that he did not pay plaintiff the balance, $39.36, of the contract price, that amount must be deducted from the $72.

Judgment modified by reducing the same to the sum of $32.64, with appropriate costs in the court below, and, as so modified, affirmed, without costs to either party of this appeal. All concur.