
    Campbell Smith Ritchie Company, Respondent, v. J. Pechenik, Inc., Appellant.
   Order and judgment affirmed, with ten dollars costs and disbursements. No opinion. Lazansky, P. J., Hagarty and Davis, JJ., concur; Kapper and Cars-well, JJ., dissent, with the following memorandum: The agreement contemplated that there might be defective doors and which the parties agreed should be returned and replaced. The defense is that for reasons which the defendant could not control some defective doors could not be returned and replaced and that defendant was obliged to incur certain expenditures to make good for the alleged defects. This situation may affect the alleged account stated, but does not in our opinion affect the counterclaim which, in the circumstances shown by the record, was properly dismissed as the defendant should, on or before June 20, 1930, have tendered the amount which it agreed to pay less such sum as it then knew to represent its alleged outlay for the reparation of defective doors. Its failure to do this justified the plaintiS in refusing to fill further orders.  