We are of the opinion that the court was correct in disallowing defendant Traitel Marble Company’s second and fourth counterclaims and in allowing said defendant’s first and third counterclaims. The fifth and sixth counterclaims, however, should also have been rejected.
The fifth counterclaim in the sum of $579.56 was permitted as damages for the alleged failure of the plaintiff, near the end of the contract period, to deliver to said defendant after demand 2,000 cubic feet of marble to which the latter claimed to be entitled under the terms of. its agreement. However, the defendant had no right to demand this additional marble, as it had already received more than the amount called for in the first two orders. The record is barren of any proof that the plaintiff was obligated to deliver the additional lot of 10,000 cubic feet embraced within the so-called third order. This counterclaim should accordingly have been disallowed.
The sixth counterclaim in the sum of $924.44 was sustained upon the theory that 146 cubic feet of marble which had been delivered by the plaintiff and paid for by the defendant, were defective. The difficulty with this claim is that there is no proof in the record to support defendant’s contention that these marble slabs were, in fact, defective. There is merely a showing that the defendant attempted to reject some slabs and that a claim was made for such defective slabs. This counterclaim should also have been disallowed by the court.
*191The judgment should accordingly be modified by disallowing the fifth and sixth counterclaims and by increasing the amount of the judgment in favor of the plaintiff by $1,504, to the sum of $11,065.67, with interest from April 10,1931, to June 19,1934, and as so modified the judgment should be affirmed, without costs.
Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.
Judgment so far as appealed from modified by disallowing the fifth and sixth counterclaims and by increasing the amount of the judgment in favor of the plaintiff by $1,504, to the sum of $11,065.67, with interest from April 10, 1931, to June 19, 1934, and as so modified affirmed, without costs. The findings inconsistent with this determination should be reversed and such new findings made of facts proved upon the trial as are necessary to sustain the judgment hereby awarded. Settle order on notice.