
    Andrew Olsen, Appellant, v. Mary Dawson Henderson, Respondent.
    Second Department,
    June 15, 1906.
    Damage — building Contract —when balance due contractor should be ' deducted from counterclaims established by owner—measure^ of damages when house misplaced by contractor.
    When there is a balance of $700, due a contractor on a building contract, and the o-wner establishes counterclaims for $800, the jury can only award the defendant the difference between said sums¿ and a verdict for the whole of the counterclaim is not warranted.
    When the defendant counterclaims because the contractor did not locate the house as the plans required,, the measure of damage is not the expense of moving the house, but the difference in Value of the property with the house ■ misplaced and the value if set according to the plan. If this value he not. proved, there, is no basis for a verdict on the counterclaim.
    Hooker, J., dissented.
    Reargument of an appeal by the plaintiff, Andrew Olsen, from á judgment of the County Court of the county of Kings in favor of the. defendant entered in the office of the clerk of. the county of Kings after a trial before the court and a jury.
    
      Isaac L. Miller, for the appellant.
    
      Roswell H. Carpenter, for the respondent.
   Gaynor, J.:

i The plaintiff built a house for the ■ defendant for the contract price of $2,000. ' The sum of $1,300 was paid to him on account, and this action is for the .balance of $700. The defendant plead's ás a counterclaim that the plaintiff did not build the house on the lines shown by the plans, and that she will be put .to an expense of $700' to move it thereto. The evidence was that the expense would be $500.. She also pleads another counterclaim of $100 for items .which she alleges the plaintiff left undone. This counterclaim was' ..on motion increase^ to $300 on the trial.

. The jury rendered a verdict of $860 for the defendant. But if * the defendant be allowed both counterclaims, amounting to $800, her damage could only be the difference between that sum and the $700 unpaid on the contract, viz., $100. The jury were misled by the charge.

Hor was there any evidence that the defendant was damaged by the misplacing of the house. The lot was 20 feet wide and the house 18, with eaves extending over about 1 foot on each side. It is claimed that the plan put the west wall of the house on the lot line. That would have put the eave on that side over the adjoining lot. The plaintiff placed the house so that the eaves came to the lot line on each side. The defendant’s measure of damage was not the expense of moving the house to the lines shown on the plan — she might never move it — but the difference in value of the property as it is and as it would have been if the house had been set according to the plan ; and this was not proved. It may be there is no such damage, for if the eave had projected over the adjoining lot the defendant would have been liable as a trespasser to ejectment (Butler v. Frontier Telephone Co., 109 App. Div. 217).

. The judgment should be reversed.

Woodward, Jenks and Rich, JJ., concurred ; Hooker, J., dissented.

Judgment and order of the County Court of Kings county reversed on reargument and new trial granted, costs to abide the event.  