
    Walbridge v. Graham.
    (City Court of New York—General Term,
    December, 1892.)
    In an action to recover a balance due on account of goods sold and delivered the defense consisted of a denial, and that the materials furnished, etc., were inferior to those contracted for. On the trial plaintiff and defendant each produced two witnesses, their testimony constituting all the evidence in the case. The only issue presented was whether plaintiff had substantially complied with his contract. After a verdict for plaintiff, defendant moved for a new trial, which was denied. Defendant, on the trial, did not ask for a nonsuit or move the court ta direct a verdict, nor were any exceptions taken by him to the judge’s charge. Held, that the case involved a question of fact which was fairly submitted to the jury, and as no errors were committed on the trial, the judgment should be affirmed.
   McCarthy, J.

This action was brought for goods, wares and merchandise sold and delivered to the defendant on and between April 21, 1891, and October 31,1891, of the value of $1,539.33, on account of which was paid the sum of $1,300, leaving due and owing to plaintiff from defendant the sum of $239.33, with interest from October 31,1891. See complaint, fols. 8 and 9.

The defendant, by his answer, admits as follows, to wit: That on and between the 21st day of April, 1891, and October 31, 1891, the plaintiffs performed certain work and labor and supplied certain material, but denies that the same was worth $1,530.33, or that that amount was agreed upon between the parties, and denies that any sums whatsoever are due on account of such goods and services (fols. 11 and 12), and the defendant, further answering, avers substantially to the effect that the work, services and materials furnished by the said plaintiff were inferior to that agreed upon and contracted for. Fols. 12, 13, 14.

The plaintiffs, at the trial, produced two witnesses, George O. Walbridge, one of the plaintiffs, and Patrick Flynn, an employee of the plaintiffs, and the witnesses produced for the defense were the defendant and Frank A. Kirtland. Their testimony constitutes all the evidence in the case.

The kind of goods sold to the defendant was fireplace gratings and seats, mantels, tiling and wainscoting, etc. This the plaintiffs contracted to place in a thoroughly workmanlike and proper manner, and to furnish proper and suitable materials, and whether or not such contract was substantially complied with was the only issue presented at the trial.

This case involved a question of fact and was fairly submitted to the jury, who rendered their verdict for the sum of $246.50.

After this verdict the defendant’s counsel moved for a new trial on the ground that the same was against the weight of evidence, and upon all other grounds specified in section 999 of the Code of Civil Procedure, which was denied and exception taken.

Upon the trial, the defendant did not move the court for a nonsuit or ask the court to direct a verdict for the defendant.

Yo exceptions were taken to the judge’s charge.

We find no errors committed on the trial, and the judgment should be affirmed, with costs.

McGown and Van Wyck, JJ., concur.

Judgment affirmed.  