
    BINGER, Respondent, v. FEUERLICH et al., Appellants.
    (Supreme Court, Appellate Term,
    January 25, 1904.)
    Action by Arnold Binger against Max A. Feuerlieh and another. From a judgment of the Municipal Court for plaintiff, defendants appeal. Modified. Alexander Rosenbaum, for appellants. Kantrowitz & Esberg, for respondent.
   MacLEAN, J.

Upon an order from the plaintiff, who was to furnish card paper and plates, the defendants undertook to print 5,000 advertising cards for $20, and certain tickets for $5. Respecting the latter there was no dispute. Of the cards, 1,696 were “printed right,’’ and accepted. After looking at a few of the cards not delivered, the plaintiff refused to take any of those left at the printers’, one of whom testifies they numbered about 1,800, of which were good about two-thirds or 1,200, thus making of those accepted, and which should have been, 2,896, amounting, at the price agreed upon for the lot, to $11.58. and making, with the $5 for the tickets and $41.05, a counterclaim of the defendants admitted upon the trial, a total for the defendants of $57.63, from which should be deducted the value of a plate, retained as for a lien, $8, and the worth of the card paper furnished, but of which the plaintiff did not have the benefit, viz., the 600 cards admittedly poor, and the remainder, not definitely accounted for by either side, of 1,504 cards, 2,104 in all, or 1,052 whole sheets at 3% cents, $36.82, together making $44.82 to the credit of the plaintiff, leaving a balance of $12.81 to be recovered by the defendants, with costs, instead of $73.68, with costs, erroneously awarded in judgment to the plaintiff, in part for the outlay in having the work done elsewhere, for which outlay, under the circumstances proven, and in the action brought on oral pleadings for “breach of contract,” he could not recover. The judgment should be modified by awarding the defendants judgment on their counterclaim as increased and diminished by the items stated above, with costs and disbursements in the Municipal Court and upon this appeal. Judgment modified, by awarding the defendants judgment for $12.81, besides costs and disbursements in the Municipal Court and upon this appeal, and, as so modified, affirmed.

FREEDMAN, P. J., and DAVID, J., concur in result.  