
    Co-op Industries, Inc., Appellant-Respondent, v Pal Pools, Inc., Respondent-Appellant.
   In an action for goods sold and delivered, in which defendant counterclaimed to recover damages for breach of warranty, negligence and loss of profits and good will, the parties cross-appeal from a judgment of the Supreme Court, Suffolk County, entered October 31, 1973, which, after a nonjury trial, is in favor of plaintiff in the principal amount of $5,291.82, upon crediting defendant with the sum of $18,000 on its first and second counterclaims. Judgment affirmed, without costs or disbursements. We agree with Trial Term that the evidence showed a breach of both express and implied warranties by plaintiff-appellant-respondent. However, we find no evidence to support the separate finding of plaintiff’s negligence in construction, fabrication and manufacture of the merchandise in question. Since the amount of damages awarded to defendant-respondent-appellant on its counterclaims in the nature of a setoff was properly measured pursuant to the breach of warranty theory, no modification of the judgment is required. Hopkins, J. P., Margett, Damiani and O’Connor, JJ., concur.  