the  chance  of  such  error  as  they  might  make,  but  with  power  to  determine

what  should  finally  be  due.     There  was,  therefore,  no  mistake  of  fact  in

the  plaintiff,  who  paid  upon  a  valuation  which  was  actually  made,  but  the

mistake  if  any  was  the  mistake  of  the  valuers.
Rule  ahioluU.
JAMES  SHAEKEY,   Appellant,  v.  LUTHER    K  MANSFIELD,

Respondent.
In  the  Court  op  Appeals  op  New  York,  October  17,  1882.
[Reported  in  90  New  York  Reports,  227.1

Appeal  from  judgment  of  the  General  Term  of  the  city  court  of  Brooklyn,
entered  upon  an  order  made  October  1,  1880,  which  affirmed  a  judgment  in
favor  of  defendant,  and  affirmed  an  order  denying  a  motion  for  a  new  trial.
This  action  was  brought  to  recover  a  balance  alleged  to  be  due  for  work
and  material  in  building  a  stone  pier  in  the  Gowanus  canal.
Plaintiff  claimed  that  the  work,  save  some  extra  work,  was  to  be  done  for
a  gross  sum,  and  that  no  price  was  fixed  for  the  extra  work ;  defendant
claimed  the  agreement  to  be  that  the  work  should  be  paid  for  at  a  specified
price  per  cubic  yard.  He  set  up  as  a  counter-claim  an  over-payment  made
through  mistake  on  his  part  as  to  the  quantity  of,  the  work  done,  which
mistake  was  not  discovered  until  a  measurement  was  made  after  the  suit
was  commenced,  which  was  in  1878.  Plaintiff  proved  that  his  bookkeeper
presented  to  defendant  a  bill  for  the  work  as  claimed  by  him  in  1872,  and
that  thereafter  defendant  made  payments  thereon.
N.  H.  Clement  for  appellant.
Tracy,  Catlin  and  Hudson  for  respondent.
