In this action of the plaintiff to recover for services rendered and materials furnished of the reasonable value and for the agreed sum of $157, the agreed sum being proven and the reasonable value being testified to without contradiction of either, the plaintiff was entitled to recover. The defendant interposed a counterclaim for $11.6 for damages for breach of an express warranty. While the contract herein was executory, the defendant had the right upon warranty broken to reject the goods, when tendered, as not answering the bargain; or, it might *122receive and accept by its retention and rely upon its only right to damage, if any, for the breach of an express warranty (Brigg v. Hilton, 99 N. Y. 517), but to no more than its claim of $116. Receive and accept it did, for return of part is not rejection, but, proving no damage, it was entitled to no judgment.
The judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
Present — Gildersleeve, MacLean and Seabury, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.