
    Theodore Katz, Resp’t, v. Pauline Wolf, App’lt.
    
      (Supreme Court, Appellate Term, First Department,
    
    
      Filed February 26, 1896.)
    
    1. Appeal—Conflicting evidence.
    The finding of a justice, on conflicting evidence, will not be disturbed on appeal.
    2. Same—Motion to dismiss.
    Where the defendant fails to make a motion to dismiss the complaint, he cannot urge on appeal that the plaintiff did not make out a prima facie cause of action.
    3. Contract—Breach—Damages.
    Where the plaintiff is guilty of a breach of an uncertain and indefinite agreement to deposit money with another on furniture which he was to purchase upon the happening of a certain event, no damages can be proved nor legally measured for such breach until the event occurs.
    Appeal from a judgment in favor of plaintiff!
   McADAM, J.

— The plaintiff furnished an estimate to do certain work on the defendant’s house for seventy-five dollars. He testified that he did all the work agreed to be doné, and received thirty dollars on account. The justice gave judgment in favor of the plaintiff for forty-five dollars, the balance due. ' Plaintiff also claimed eleven dollars for extra work, but this the justice disallowed. The question of performance was-decided on conflicting testimony; the plaintiff testifying oneway, 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; 57 St. Rep. 536. 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; 51 St. Rep. 579.

The defendant claims that the justice erred in declining to allow her counterclaims. The first of these, for six dollars 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 fifteen dollars 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 motion, 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 such an uncertain and indefinite agreement. No error is disclosed by the record, and the judgment must be affirmed, with costs.  