Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal by defendant from a judgment of the Supreme Court entered in Saratoga County in favor of plaintiff after a trial by the court without a jury. The parties entered into a written contract on June 24, 1955 whereby plaintiff agreed to construct a two-story addition to an industrial building owned by defendant in accordance with the terms of the contract and with drawings prepared by an architect paid by defendant. Plaintiff brought this action to recover the unpaid balance of $1,850 on the contract price and for $1,600 for cost of extra materials and labor furnished at defendant's request. Defendant counterclaimed that plaintiff had constructed the floor of the second story too high and not in accordance with the contract or drawings furnished, and also claimed damages for alleged deficiencies in the work performed and for failure to complete the work within the time limit specified in the contract. The trial court has found that any delay in the construction was caused by changes in the design of the building made by defendant. The court has allowed plaintiff $1,501.75 for "extras" furnished at defendant's request and computed as provided in the contract, and has allowed $1,700 as the amount due on the original contract price. The trial court has found as a fact that there was substantial compliance with the contract by the plaintiff. As we view the record only open questions of fact are presented, and there is ample evidence to sustain the determinations made by the trial court. Judgment unanimously affirmed, with costs.