
    BALDINGER & KUPFERMAN MFG. CO. v. CHRIST.
    (Supreme Court, Appellate Term.
    June 27, 1907.)
    Contracts—Action—Part Performance.
    Where it was admitted: that plaintiff’s assignor furnished defendant gas fixtures, but did not hang them as he agreed to, it was error to award judgment against defendant for the contract price; defendant having expended money in hanging the fixtures.
    I'Ed. Note.—Eor cases in point, see Cent. Dig. vol. 11, Contracts; §§ 1477, 1502.]
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
    Action by the Baldinger & ICupferman Manufacturing Company against John M. Christ. From a judgment for plaintiff, defendant appeals.
    Reversed, unless plaintiff stipulates to reduce the judgment, in which case judgment will be modified and affirmed.
    Argued before GILDERSLEEVE, P. J., and SEABURY and PLATZEK, JJ.
    Gallucci & Gallucci, for appellant.
    Phillips & Avery, for respondent.
   PER CURIAM.

This action was upon a written contract for the sale, delivery, and hanging by the plaintiff’s assignor of certain gas fixtures for the sum of $300. The plaintiff sought to recover a balance of $100 under the contract. The making of the contract and the delivery of the materials called for by the contract was admitted. It was also admitted that the plaintiff’s assignor did not hang the fixtures as required by the contract. The trial justice awarded judgment for the plaintiff for the sum of $119.31.

We have examined the rulings of the learned trial justice upon questions of evidence, and we do not find that any error was committed by him. Inasmuch as it was admitted that the plaintiff’s assignor did not hang the fixtures, it was error to award judgment for the full amount of plaintiff’s claim. The evidence showed that the defendant caused the fixtures to be hung at an expense to him of $30.

It follows, therefore, that the judgment must be reversed, unless the plaintiff stipulates to reduce the judgment recovered by $30. If this stipulation is made, the judgment will be modified accordingly, and, as modified, affirmed, without c'osts. If the plaintiff does not so stipulate, the judgment is reversed, and a new trial ordered, with costs to appellant to abide the event.  