
    William Werner, Respondent, v. The City of New York et al., Appellants.
    
      Contract — action to recover balance alleged to be due on building contract — defense of failure to fully perform.
    
    
      Werner v. City of New York, 189 App. Div. 910, affirmed.
    (Argued February 1, 1921;
    decided March 1, 1921.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 8, 1919, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover a balance alleged to be due upon a contract for the fireproofing of certain school buildings in the borough of Brooklyn. The defense was failure to fully perform.
    
      John P. O’Brien, Corporation Counsel (John F. O’Brien, William E. C. Mayer and James P. O’Connor of counsel), for appellants.
    
      Jeremiah T. Mahoney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Not voting: Hogan, J.  