
    Panzieri-Hogan Co., Inc., Respondent, v. Harry H. Bender, Appellant.
    
      Contract — action to recover balance unpaid on building contract — defense of damage by delay in completion of work — when strike excuse for delay.
    
    
      Panneri-llogan Co., Inc., v. Bender, 205 App. Div. 398, affirmed.
    (Argued November 28, 1923;
    decided December 27, 1923.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 25, 1923, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover a balance conceded to remain unpaid by defendant to plaintiff upon a contract for the construction of a budding. The answer, putting in issue no allegation of the complaint, alleges, by way of defense and counterclaim, that defendant, through plaintiff’s failure to complete the building within the stipulated time, sustained damages through loss of rents to an amount equivalent to the balance unpaid upon the contract. The reply, besides putting in issue most of the material allegations of the counterclaim, .avers, as an excuse for the delay in the completion of the building-, a strike on the part of plaintiff’s employees.
    
      
      Robert E. Whalen for appellant.
    
      Thomas F. McDermott for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  