
    Don A. Gaylord et al., Resp’ts, v. John D. Karst, Jr., App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed February 1, 1892.)
    
    1. Contract—Damages for breach—Waiver.
    . In an action for building materials furnished at defendant’s request, the defendant counterclaimed for damages caused by failure to furnish said materials at the time agreed. Held, that a charge that the jury had a. right to consider whether a subsequent receipt of the materials by defendant was a waiver of any claim for damages was error.
    2. Trial—Erroneous charge.
    An apparent possibility of injury from an erroneous charge demands that the verdict rendered thereon be set aside, unless the party seeking to take advantage of the verdict conclusively establishes the absence of injury, and the burden of doing so rests upon him.
    
      Appeal from a judgment of the general term of the city court, •affirming a judgment entered upon a- verdict for plaintiffs in an action to recover the balance due upon a contract for the sale and •delivery of certain building material.
    
      J. M JEustis, for resp’ts; Lewis Sanders, for app’lt.
    
      
       Reversing 37 St. Rep., 688.
    
   Bischoff, J.—Plaintiffs

sued to recover $262, as and for the balance claimed to be due them for building material supplied at defendant’s request for use in certain buildings in course of construction. Defendant denied all of the material allegations of the complaint, excepting the partnership of plaintiffs, and counterclaimed damages alleged to have resulted to him from the nondelivery of the building material within the time agreed upon.

On the part of plaintiffs, it appeared on the trial that the contract was made on or about January 19, 1887, and required them to deliver the material by March 4, 1887. The evidence for the defense tended to show, and the fact seems to have been substantially conceded, that a considerable portion of the building material was delivered and accepted by the defendant long after the time originally appointed by the contract Plaintiffs, however, contended that any delay in the delivery was occasioned by the neglect of the defendant to progress with the construction of the building, whereby they were prevented from taking the measurements required for the manufacture of the material by them agreed to be supplied, and that they were for that reason absolved from the consequences of the delay in its delivery. Defendant, on the other hand, claimed that the construction of the buildings had sufficiently progressed, and that the delay in their ■completion was caused wholly by the failure of plaintiffs to make ■delivery of the building material as agreed.

Both parties sustained their several contentions by evidence .sufficient to have supported a verdict either way, and defendant also introduced evidence from which damage from delay in completion of the buildings was made to appear.

Upon the close of the evidence, counsel for plaintiffs requested the court to charge that the defendant’s consent, given in April,, succeeding March, 1887, thereafter to accept the building material remaining and undelivered as quickly as it could be delivered, was a waiver in respect'to the time of delivery fixed by the contract, and the court thereupon charged the jury as follows: “ There is no dispute, I understand, but that all these goods were delivered some time or other, and that the goods were received -and used by the defendant in his place. You have a right to consider whether that receipt was not a waiver of any claim for damages.to which defendant’s counsel duly excepted. The jury thereupon found for the plaintiff for the full amount claimed, with interest.

Obviously so much of the charge as is italicized by us had no other purport than to instruct the jury that if they found that defendant consented in April to accept future delivery of the "building material, which plaintiffs had originally agreed to deliver on the fourth of the previous month, they were at liberty to find further that defendant had thereby waived all claim for damages .accruing to him from plaintiff’s default in delivery by the time first appointed, and as this seems to be in direct conflict with the law as declared by the court of appeals in Ruff v. Rinaldo, 55 N. Y., 664; and McMaster v. The State of New York, 108 id., 542, 553; 13 St. Rep., 674, it is impossible to escape from the conclusion that the charge was erroneous and the exception thereto well taken.

That the defendant was prejudiced by this error is a proposition the validity of which is apparent upon its mere assertion, as the error vitally affected the meritorious consideration by the jury •of defendant’s counterclaim.

An apparent possibility of injury from an erroneous charge demands that the verdict rendered thereon be set aside, unless the party seeking to take advantage of the verdict conclusively establishes the absence of injury, and the burden of doing so rests upon him. Greene v. White, 37 N. Y., 405, 407. It is not sufficient in the case of a general verdict, as in this action, to contend that the jury may not have observed the erroneous instruction, .and might, notwithstanding it, have found a verdict in his favor on the merits of the controversy, but it is incumbent upon him to show that they could not have done otherwise, Starbird v. Barrons, 43 N. Y., 200, 204; Pollett v. Long, 56 id., 200, 207; Richards v. Millard, id., 574, 584, and as there was evidence upon which the jury could have been justified in finding for the defendant on the counterclaim, we are unable to say that they would not have done so but for the erroneous instruction. The judgment appealed from must, therefore, be reversed.

Judgment of the general and trial terms of the court below reversed, with costs to abide the event, and new trial ordered.

Pbyob, J., concurs.  