Bailey v. Roche

53 N.Y.S. 1099

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 1898
• Status: Published

Opinion

GOODRICH, P. J.

The plaintiffs and David Roche made a contract whereby the plaintiffs were to furnish Roche certain building materials for a house which the latter was erecting at Far Rockaway. The complaint alleged that the plaintiffs furnished materials amounting to $4,-963.38, and that Roche paid on account $4,-203.94, leaving unpaid $759.44. The answer denied that the value of the goods exceeded the amount paid, and by way of set-off alleged that, by the agreement between the parties, the material was to be of “first quality,” but was not all of such character, to the defendant’s damage $958.44, the amount unpaid. The issues were referred, and, the defendant, Roche, dying, the present defendant, executor of his will, was substituted as defendant. A large amotint of evidence was taken, some of it tending to prove that the materials furnished were .of first quality, and some of it tending to sho-V that a part of them was of inferior quality; but there was only a simple question of fact involved. After careful examination of the evidence, we see no reason to disturb the finding of the referee, who made a slight allowance for defects and found that the plaintiffs had substantially complied with their contract, and furnished materials to the value of $4,909.09, and directed a judgment on that basis. Judgment affirmed, with costs. All concur.