BRADLEY, J.

The plaintiff entered upon the performance of the work. And whether or not he substantially performed it depended upon other facts which the referee found against the plaintiff. There were several controverted questions of fact, which it is unnecessary to specifically mention here, since there was evidence to support the facts as found by the referee; and upon them the conclusion was warranted that there was a substantial breach of the contract on the part of the plaintiff available to defeat a recovery by him. ( Smith v. Brady, 17 N.Y. 173.) But having determined that the defendant was entitled to relief from the obligation of her contract by the breach of it by the plaintiff, and having for that reason wholly relieved her from it accordingly, it is difficult to see how the referee could properly have awarded damages in her favor against the plaintiff for the non-performance of the contract. She could not repudiate the contract for the purpose of barring the plaintiff's claim for his work, and at the same time make it effectual for the recovery of damages against him for its breach, although she might, if the facts permitted recover damages, if any there were, in excess of the price or value of the plaintiff's work. And the reason is that in such case the contract is permitted to remain operative for the purpose of the remedy and relief of both parties to it, and it is no less essential to support the defendant's claim for damages than it is to sustain that of the plaintiff founded upon it for his work. It is apparent that a rule having the effect to give one of the parties to a contract the benefit of it to the exclusion of the other in the same action, would or might work very unjustly to the latter and quite unreasonably to the profit of the former. ( Walker v. Millard, 29 N.Y. 375; Woodward v. Fuller, 80 id. 312.) In the present case the conclusion was warranted by the evidence that the work performed by the defendant at the contract prices amounted to more than the damages recovered by the defendant. The effect of the recovery directed by the referee was to give the defendant the benefit, such as it was, of all the work performed by the plaintiff and, in addition, the damages awarded to her against him. This was justified by no sound principle of law. The conclusion of law was based upon the fact found that the work which the plaintiff undertook by the contract to do, was not substantially performed by him, not that his work was of no value to the defendant.

The view thus taken renders the consideration of any other question unnecessary.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.