Opinion
March, 1916.
In the course of this protracted trial we think plaintiff's counsel fell into error through overconfidence, so that eventually recovery was staked upon the results of the measurement of the inside of the boilers. Upon an official measurement in the presence of court, counsel and plaintiff in person, the inside diameter of both boilers averaged two inches less than the specified sixty-six inches, with a smaller reduction in the lengths. There was evidence likewise of imperfections in the erection of the smokestack subsequently ordered. In case of inadvertent omissions, variation or defective workmanship, not vital to performance, plaintiff has the burden of proving the amount of any allowance to be made therefor. ( Spence v. Ham, 163 N.Y. 220, 227.) For a more correct determination of the rights of the parties we think there should be a new trial. It is not too late to amend the complaint in respect of the allegation of due performance of all the contract conditions. The judgment of the County Court of Queens county in favor of defendant is accordingly reversed and a new trial ordered, without costs of this appeal, but with leave to apply to the Special Term, if plaintiff be so advised, to amend his complaint upon proper terms. The intermediate order should be affirmed, without costs. Jenks, P.J., Stapleton, Mills, Rich and Putnam, JJ., concurred. Judgment of the County Court of Queens county in favor of defendant reversed and a new trial ordered, without costs of this appeal, but with leave to apply to the Special Term, if plaintiff be so advised, to amend the complaint upon proper terms. Intermediate order affirmed, without costs.