134 Misc. 456 | N.Y. Sup. Ct. | 1929
On January 4, 1922, defendant Sandman contracted with the plaintiff to do some general repairs, painting, etc., in a public school in the city of New York for the agreed contract price of $805, the work to be finished within ninety days after the contractor was notified to commence work. On May 10,1922, plaintiff duly notified said contractor to commence work, but Sandman never performed any of the work and abandoned the contract. On March 27, 1924, plaintiff duly awarded a new contract for the same work to another contractor for the agreed contract price of $973, and such other contractor completed the work within sixty-four days after May 7, 1924, the date when he was notified by plaintiff to begin work. The defendant surety company gave its undertaking in the sum of $400 to secure the performance of Sandman’s contract.
Plaintiff seeks to recover against each of these defendants the sum of one hundred and sixty-eight dollars, representing the excess cost of the work under the second contract, and also the sum of three thousand four hundred and sixty dollars, claimed as “ liquidated damages,” representing 346 days’ delay in the completion of the work at the rate of ten dollars a day. Taking into consideration the subject-matter of the contract and the circumstances of the parties when the contract was made under a fair construction of
Similar provisions in building contracts uniformly have been held inapplicable where the contractor repudiated the contract without performance of any of the work. (Gallagher v. Baird, [First Dept. 1900] 54 App. Div. 398; Murphy v. United States Fidelity & Guaranty Co., [1905] 100 id. 93; affd., without opinion, 184 N. Y. 543; Village of Canton v. Globe Indemnity Co., [Third Dept. July, 1922] 201 App. Div. 820.) In Village of Canton v. Globe Indemnity Co., supra), Cochrane, P. J., writing the opinion of the court, stated: “ The authorities quite uniformly hold as far as I am advised that a provision for liquidated damages in a building contract such as we are here considering should be construed as applying only to delayed and not to abandoned performance [citing cases]. * * * It seems anomalous that an owner should be allowed liquidated damages for delays in the completion of a contract which the owner itself completed even though as-is probably true in this case the plaintiff proceeded with due diligence. There are few cases indeed where it cannot be said that even more than due diligence might have been exercised. * * * The provision for liquidated damages must be construed, not in the light of the fact that there has been no ‘ unnecessary delay ’ by the plaintiff, but in the light of possibilities permitted by such construction. There would be a constant temptation to an owner in such a case not to hasten the work to completion. The inference from this is that it was the intention of the parties that the liquidated damages should apply only to work performed by the contractor, and not by the plaintiff.”
The cases relied on by the plaintiff are not contrary to the foregoing decisions and are not controlling here; all are cases where the contractor commenced the work and thereafter breached the contract. Further, the magnitude of the stipulated sum now claimed
Judgment is directed in favor of the plaintiff against each of the defendants for the sum of $168, with interest thereon from October 1, 1924. Motion to set aside verdict and for a new trial will be deemed to have been made by plaintiff and denied, with exception to plaintiff. Clerk is directed to enter judgment accordingly.
