
    Conover v. Lennon.
    
      (City Court of New York,
    
    
      General Term.
    
    March 10, 1892.)
    Plastering Contract—Delay—Lost Rents.
    In an action on contract for plastering, testimony that defendant was delayed one month by failure of plaintiff to finish his work is not sufficient to support a counter-claim for lost rents, when there is nothing to show that there were any applications for rooms during the period for which the claim was made.
    Appeal from trial term.
    Action by David Conover against William F. Lennon, on contract. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Argued before Ehblioh, C. J., and Fitzsimons, J.
    
      James Kearney, for appellant. William. H. Gardner, for respondent.
   Fitzsimons, J.

There is abundant evidence in this case to sustain the finding that the “lathing” was not included in the contract for “plastering.” In fact, the testimony of plaintiff shows that he had a special agreement with defendant concerning the “lathing,” which agreement the trial justice chose to believe was entered into between plaintiff and defendant. He was also justified in finding that the plaintiff performed his work in a reasonable time. Besides, I think that defendant’s counter-claim for alleged lost rents was not sustained. He merely testifies that he was delayed by the alleged failure of plaintiff to speedily finish his work for one month, and charged plaintiff for loss of rents for that month about $1,250. There is no testimony tending to show that, for the period for which he makes this claim, there were any applicants for rooms in said houses; therefore the trial justice was justified in excluding that claim, as well as all the other alleged counter-claims. The testimony concerning them was contradictory and conflicting. The plaintiff’s testimony was believed, and the defendant’s disbelieved, and rightfully so, we think. After carefully reading the testimony, we are convinced that the judgment was a just one, and, finding no errors, said judgment is affirmed, with costs.  