64 N.Y.S. 549 | N.Y. App. Div. | 1900
The plaintiff undertook to do all the plumbing work in* four houses in process of construction by the defendant. He was to receive $1,448 in all, the first payment of $600 to be made when the rough plumbing was in place. The defendant paid him $333 on account of the work and no more. In this action the plaintiff has recovered judgment for the balance of the first paymént provided for in the contract, together with interest thereon. The propriety of this recovery depends' upon whether the plaintiff had performed the contract up to the point where he became entitled to the first payment. So far as this is a question of fact, it must be deemed settled by the judgment of the court below, which is based-upon conflicting evidence as to the extent and character of the plaintiff’s work. There is one question of law, however, which requires to be considered. The contract bound the plaintiff to well and sufficiently erect and furnish. the specified plumbing work agreeably to the specifications thereunto annexed. These specifications contained no provision in regard to the size of the vent pipes, but declared that the building department permit was “ to be followed in all cases where it usually governs.” The specifications submitted to the commissioner of buildings, however, upon which the building permit was issued, and which enter into and form a part
The judgment "in favor of the plaintiff necessarily involves a finding by -the trial court that the rough plumbing work was completed according to the contract. This disposes of the counterclaim based on, the expenditures which, the defendant says, he had to •make in order to finish the work himself, after the plaintiff had failed to do so. There was a conflict in the testimony on these-issues, and, as has been repeatedly declared in this court, we have no power, under such circumstances, to review a judgment of the Municipal Court upon the facts. (Northridge v. Astarita, 47 App. Div. 486.)
The judgment appealed from should be affirmed.
'All concurred.
Judgment of the Municipal Court affirmed, with costs.