
    Andrew J. Robinson Company, Appellant, v. Security Mutual Life Insurance Company, Respondent.
    
      Robinson Co. v. Security Mut. L. Ins. Co., 167 App. Div. 880, affirmed.
    (Argued January 30, 1918;
    decided February 15, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. This action was brought to recover a balance alleged to be due-and owing to the plaintiff under the provisions of a contract in writing, by which the plaintiff agreed to furnish and provide all materials and perform all the work necessary for the erection of an office building on premises owned by defendant in the city of Binghamton, and to receive in payment the total actual cost of the labor and materials plus five per cent. There was no controversy with respect to the cost of the work, or the amount of plaintiff’s percentage thereon or the balance unpaid on either item. The only questions arose with respect to a claim made by the defendant to an offset against the amount claimed by the plaintiff on account of two items of expenditure which it claimed it was obliged to make, owing to acts of the plaintiff in violation of its duty under the contract.
    
      Edward S. Clinch for appellant.
    
      Harvey D. Hinman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Chase, Collin, Chddeback, Hogan and Crane, JJ. Not sitting: McLaughlin, J.  