
    Brooklyn Structural Steel Corporation, Respondent, v. Abraham Lechtman and Abraham Chalkovsky, Copartners Trading Under the Firm Name and Style of Lechtman-Chalkovsky Iron Works, Appellants.
    (Supreme Court, Appellate Term, First Department,
    October, 1915.)
    Damages — liquidated — when not a waver of right to recover on counterclaim — evidence — contracts.
    A provision in a building contract for liquidated damages at the rate of ten dollars a day for delay evidences that it was not intended as a penalty.
    The fact that the contractor was permitted to finish the work after the date originally fixed for its completion is not a waiver of the right to recover as a counterclaim the liquidated damages stipulated by the contract.
    While the acceptance of the work at the delayed day might be regarded as a waiver or abandonment of any defense to an action to recover the contract price, defendants were still entitled to counterclaim for their damages.
    .Appeal by defendants from a judgment of the City Court of the. city of New York, in favor of plaintiff, after a trial by a judge without a jury.
    
      Horwitz & Feinberg (Philip F. Feinberg, of counsel) , for appellants.
    Miller & Hartcorn (Isaac L. Miller, of counsel), for respondent.
   Bitur, J.

This appeal involves purely a question of law. Plaintiff contracted to do some building work for defendants and to have it finished by a day certain. The contract also provided for liquidated damages at the rate of ten dollars a day for each day’s delay.

Defendants offered no proof of damage; nor do I think that it can be claimed that that was necessary as the provision for liquidated damages in this case is so reasonable as to indicate beyond any doubt that it was not intended to be a provision for a penalty. See Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 199 N. Y. 479; United States v. Bethlehem Steel Co., 205 U. S. 105, 119.

The,learned judge below was of opinion that as defendants had permitted the plaintiff to finish the work after the date originally fixed for completion, this constituted a waiver of the right to recover the amount of damages liquidated by the terms of the contract even by way of counterclaim. I cannot concur in this view, and think that the decision in Deeves & Son v. Manhattan L. Ins. Co., 195 N. Y. 324, plainly indicates the contrary to be the correct rule. The acceptance of the work at the delayed day may quite properly be regarded as a waiver or abandonment of any defense to the action for the compensation provided in the contract, but, as said by the Court of Appeals, defendant is merely thereby remitted to a counterclaim for his damages, and in the case at bar these damages are fixed by the very contract upon which plaintiff seeks to recover.

Judgment modified by reducing tbe amount of the recovery to the sum of $440.34 with interest from December 28, 1914, and costs in the court below and, as modified, affirmed, with costs of the appeal to the appellants ; costs to be set off against the judgment.

Page and Shearn, JJ., concur.

Judgment modified, and, as modified, affirmed, with costs to appellants.  