
    Albert J. Riss, Resp’t, v. Daniel Messmore, App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed March 4, 1890.)
    
    1. Wakbanty—Breach—Damages.
    Defendant sold to plaintiff a lintel which proved defective, and the referee found that it was by reason thereof that the walls of the building fell. Held, no er'or, and that plaintiff was entitled to recover the damages-caused by the fall of the lintel.
    2. Same—Interest not allowable.
    In an action for breach of warranty in the sale of goods interest on the damages is not allowable.
    8. Same—-r ounterclaim.
    In such an action the defendant is not entitled to counterclaim the purchase price, because he has not delivered the thing he agreed to deliver.
    Appeal from a judgment entered on the report of a referee. The action was brought to recover damages for a breach of a. warranty of a lintel sold to plaintiff by defendant. The defendant by counterclaim sought to recover the purchase price of the lintel. “
    “ Moody JR. Smith, for app’lt; JRollin F. Beers and Charles S. Miller, for resp’t.
   Truax, J.

We do not think that the referee erred in finding as matter of fact that the walls of the building into which the lintel was put fell because of a defect in the lintel and that plaintiff was entitled to recover from the defendant the damages that were caused by the fall of the lintel.

But we think that the referee erred in giving plaintiff interest on the damages that ho sustained by reason of the breach of warranty. It was held by the court of appeals in White v. Miller, 78 H. Y, 893, that interest should not be allowed as damages for a breach of warranty in the sale of goods.

The referee also allowed plaintiff as damages the rental value of the house for two months. There is no evidence to sustain this finding in its entirety. The plaintiff’s only witness on this point testified: “If we had not let the house, it could have been done two months later, the 1st of July.” This at the most would only warrant the referee in giving plaintiff the rental value of the house from the 1st of July, and not from the 1st of June.

The referee did not err in refusing to allow defendant his counter-claim. He was not entitled to recover the contract price because he had not delivered the thing he agreed to deliver, and he was not entitled to recover its value because there is no evidence of its value.

Our attention has been called to but one alleged error relating to the evidence. One of plaintiff’s witnesses testified that he was on the ground after the front of the building had fallen, and examined the “lintel that we all supposed was the cause of its falling,” and defendant’s counsel moved to strike out the words “ that we all supposed was the cause of its falling.” This motion was denied, and defendant excepted to the ruling of the referee. We do not think that the judgment should be reversed because of this ruling. A number of witnesses had testified that the lintel was the cause of the fall, and the witness was only referring to that fact. But if this phrase were out of the case, the testimony remaining in the case would sustain the finding of the referee on this point.

Judgment reversed, unless the plaintiff stipulate to reduce the judgment by deducting therefrom $852.73-100, in which event judgment is affirmed, without the costs of this appeal.

Dugro, J., concurs.  