Summary
In Lashinsky v. Silverman (48 Misc. Rep. 501) it was held by the Appellate Term that where a contractor had failed to comply with the terms of his agreement to an extent represented by ten per cent in some particulars and fifteen per cent in others, he had failed to show substantial performance of his undertaking and could not recover.
Summary of this case from Gompert v. HealyOpinion
November, 1905.
J. Charles Weschler (S.S. Myers, of counsel), for appellants.
Henry Salant, for respondent.
The plaintiff undertook, in writing, with the defendant first named, to "provide all the materials and perform all the work for the carpenter work * * * all the carpenter work to be done in" the alteration of certain buildings the defendants owned, or were interested in, for $2,100. Claiming to have fulfilled, substantially, all of his undertaking, the plaintiff brought this action and has recovered judgment for a balance of $300 on the agreement and $492, besides, for extra work. These sums are not supported sufficiently by his proof, which fails to show substantial performance of his undertaking. He agreed, for example, to, but did not, alter all the closet partitions between the dining rooms and kitchens, fill up door openings to dining rooms, cut new openings in kitchens and furnish new doors, trim and hardware. As excuse for nonperformance he offered the assertion: "My agreement specifies distinctly that I shouldn't do it," although there was for it only the provision "The ice box partition is not to be removed." Again he said "I did not do those new doors; that was excepted from my contract." The contract shows no such exception. Of sixteen new wardrobes, he put in but two, a substantial omission, amounting to ten per cent. of his whole undertaking, according to testimony, not contradicted, that the wardrobes of rather elaborate fashion and fittings were worth $15 a piece. For another omission, one equalling 15 per cent. of the contract price, he claimed verbal authorization from Mrs. Silverman, who denied it and who was plausibly supported by the architect and by her son. Turning to the claims for extra work: Possibly to avoid the call "each man to his trade," it was provided, as noted above, that the plaintiff should "do all the carpenter work to be done," but he asserted a claim of $150 for the cutting of the beams, called headering, with other items for other things covered, at least in part, by his agreement and undertaking. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
SCOTT and GILDERSLEEVE, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.