
    Theodore Katz, Respondent, v. Pauline Wolf, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Counterclaim — Must belong to .defendant.
    Only claims which belong to ■ the defendant ican be allowed as counterclaims.
    2. Same — Agreement tó make deposit on future purchases.
    A counterclaim for breach of an agreement to deposit a certain sum upon furniture to be purchased of defendant when plaintiff got married is properly disallowed, where the agreement does not specify the Quantity or quality of such furniture or its value and'the marriage' has. not yet occurred, as in such case there is no basis on which the. damage arising from the breach can be measured.
    Appeal by defendant from judgment of the Fourth District Court. '
    LaFetra & Glaze, for appellant.
    S. Hoffman, for respondent.,
   McAdam, J.

The plaintiff furnished an estimate to do certain - work on the "defendant’s house for' $75. He testified that he did ' all the work1 agreed to be done, and received $30 on account. "The1 justice gave judgment in favor of "the plaintiff for $45, the' balance due. Plaintiff also claimed $11 for extra work, but this .the justice disallowed.

The question of performance was" decided on conflicting testimony, the plaintiff testifying one way 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. 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."

The defendant claims- that the justice erred in declining to allow her counterclaims. The first of these, for $6,. -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 $15 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 goods;, and (much would, in the nature of things, depend upon the notion, fancy and requirements, of the plaintiff when the event for which the furniture was intended should occur, and it' has not yet occurred. The justice could not have allowed anything on sudh an uncertain and indefinite agreement.

No error is disclosed by the record, and the judgment must be affirmed, with costs.

Bisohoff, J., concurs.

Judgment affirmed, with costs.  