
    BAILEY et al., Respondents, v. ROCHE, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    July 23, 1898.)
    Action by Edwin Bailey, Joseph Bailey, and Edward Bailey, Jr., against Edward Roche, as executor of the will of David Roche, deceased.
    Oscar F. Georgi, for appellant.
    Timothy M. Griffing, for respondents.
   GOODRICH, P. J.

The plaintiffs and David Roche made a contract whereby the plaintiffs were to furnish Roche certain building materials for a house which the latter was erecting at Far Rockaway. The complaint alleged that the plaintiffs furnished materials amounting to $4,-963.38, and that Roche paid on account $4,-203.94, leaving unpaid $759.44. The answer denied that the value of the goods exceeded the amount paid, and by way of set-off alleged that, by the agreement between the parties, the material was to be of “first quality,” but was not all of such character, to the defendant’s damage $958.44, the amount unpaid. The issues were referred, and, the defendant, Roche, dying, the present defendant, executor of his will, was substituted as defendant. A large amotint of evidence was taken, some of it tending to prove that the materials furnished were .of first quality, and some of it tending to sho-V that a part of them was of inferior quality; but there was only a simple question of fact involved. After careful examination of the evidence, we see no reason to disturb the finding of the referee, who made a slight allowance for defects and found that the plaintiffs had substantially complied with their contract, and furnished materials to the value of $4,909.09, and directed a judgment on that basis. Judgment affirmed, with costs. All concur.  