#### Paul Zunz, Respondent, *against*James H. Heroy *et al.,*Appellants.

(Decided December 2d, 1889.)

In an action for an accounting of the proceeds of goods shipped to defendants to be sold for plaintiff, a counterclaim, for breach of the contract to ship goods for sale, cannot be sustained, where it appears that a condition of the shipment was that defendants were to furnish letters of credit to secure the price, and the letters given for the goods shipped were cancelled, and where there is no proof of actual damages.

Appeal from an interlocutory judgment of this court on a trial by the court.

The action was for an accounting for proceeds of goods shipped by plaintiff to defendants. Defendants set up counterclaims. At the trial the counterclaims were dismissed and a reference ordered to take an account. From the interlocutory judgment entered thereon defendants appealed.

*William W.*Niles, for appellants.

*Horwitz*& Hershfield, for respondent.

Larremore, Ch., J.

The record in this case is voluminous, but the points to be considered on the appeal are very simple. The action is for an accounting for the proceeds of glass shipped to defendants, as brokers, to be sold for plaintiff’s account. Defendants admit the delivery to and sale by them of the merchandise specified in the complaint, and there is evidence to support the findings of the judge at Special Term as to the agency on defendants’ part. Indeed, it would almost seem, from a perusal of the testimony, that defendants did not seriously dispute plaintiff’s original claim, or the sufficiency of the evidence to uphold it, but relied upon their counterclaims.

*412Said counterclaims were properly dismissed. They were alleged to have arisen on contracts for the sale of glass to defendants by plaintiff, and defendants aver that they have suffered damage by reason of plaintiff’s neglect to deliver such merchandise to them. But the contracts in question stipulate that, as a condition to the shipment of goods, defendants should furnish letters of credit on certain bankers to plaintiff, to secure him for the purchase price. Two letters of credit were in fact furnished under the first order, and plaintiff accordingly shipped goods as called for by the contract. These two letters of credit were subsequently can-celled, and none others were afterwards given. Defendants’ case on such counterclaims was therefore fatally defective, in that it failed to show performance on their part of the contracts of which they claimed the benefit.

But, beyond .this, defendants do not prove any actual damage by reason of the failure of the plaintiff to forward the glass. This in itself would have necessitated a dismissal of the counterclaims. The learned counsel for the appellants strenuously insists that the counterclaims should not have been dismissed, but that an award of nominal damages should have been made upon them. This is an action in equity for an accounting, and we have been unable to perceive how such award could be of the slightest benefit to defendants, even if, as matter of law, they were entitled to it. In our opinion the trial judge properly eliminated all consideration of the alleged counterclaims from the case before sending it to a referee to take and state the account.

As to the appeal from the order of March 29th, 1889, refusing to amend the interlocutory judgment, it will be useless to consider the same now, for it appears that the referee has already made and filed his report. Whether or not he acted upon a too narrow view of the scope and meaning.of the interlocutory judgment we will determine if an appeal is taken from the final judgment. It would be impossible to consider this question intelligently without *413having before us the record of proceedings upon such reference.

The interlocutory judgment appealed from should be affirmed, with costs.

Van Hoesen, J., concurred.

Judgment affirmed, with costs.