282 A.D. 775 | N.Y. App. Div. | 1953
In an action to recover for goods sold and delivered (lumber), and on an account stated, judgment entered after trial before an Official Referee modified on the law and the facts by striking therefrom the figure “ $18,692.46 ” and by substituting in place thereof the figure “$1,538.58”; by striking therefrom the figures “ $2,289.83 ” and “ $22,232.78 ” and by substituting in place thereof the adjusted amount of interest and the new total amount of the judgment; and by striking from the last decretal paragraph the provision for dismissal of the counterclaim and affirmative defense on the merits. As thus modified the judgment insofar as appeal is taken is unanimously affirmed, without costs. Findings of fact inconsistent herewith are reversed. The evidence establishes that plaintiff delivered 67,357 feet of two and three-inch lumber in excess of the quantities contemplated by the contract; and that the average market price thereof was $112.50 a thousand. Except for one item of $103.20, which should be allowed to plaintiff, the one-inch materials are not in dispute. Plaintiff is also entitled to $382 for gyplap. The evidence further establishes that the value of the ungraded and useless lumber is $2,500, for which appellant is entitled to credit. The result is tabulated as follows:
Total delivered under the contract.............................. $136,002.50 Total two and three-inch lumber in excess of the contract plus above two items in addition to the contract.......................... 8,062.86 Total delivered............................................... $144,065.36 Balance ..................................................... 4,038.58 Less allowance for ungraded and defective lumber................ 2,500.00 Plaintiff’s net recovery......... 1,538.58
Adel, Acting P. J., Wenzel, MaeCrate, Schmidt and Beldoek, JJ., concur.
