
    KERTSCHER et al. v. PICKEN.
    (Supreme Court, Appellate Term.
    May 19, 1904.)
    1. Counterclaim—Pleading—Instructions.
    Where no counterclaim was interposed, and the amount of damages sustained by defendant was not shown, he was properly refused an instruction that he was entitled to have furnished him materials of good, substantial character.
    Appeal from Municipal Court, Borough' of Manhattan, Eleventh District.
    Action by Herman Kertscher and others against John A. Piclcen. From a judgment for plaintiffs, defendant appeals. Affirmed.
    Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
    E. J. Krug, Jr., for appellant.
    Phillips & Avery, for respondents.
   PER CURIAM.

The most that the defendant could do, if the plaintiffs failed to perform their contract, would be to recover the damages sustained b)r him by reason of the failure of the plaintiffs to perform their contract; provided he had alleged in his answer that he had sustained damages through the acts of the plaintiff, and the amount of such damages. There is no counterclaim in the action, and the amount of damages, if any, sustained by the defendant, was not proved on the trial. It was therefore not error for the court to refuse to charge, as requested by the defendant, that the defendant was entitled to have furnished and supplied to him materials of good, substantial character and workmanship, because, under the pleadings and the evidence, that proposition was only an academic one.

Judgment affirmed, with costs.  