87 N.Y.S. 156 | N.Y. App. Div. | 1904
The question presented upon this appeal involves the right of the respondents,, defendants, to recover from the appellants, defendants, the balance due upon a contract made for plastering a building which was in course of erection by the appellants for the city of New York. The respondents filed a lien against the amount due to the appellants from the city, and the appellants subsequently gave the bond upon which the lien was discharged; and the question presented is as to the right of the respondents to recover from the appellants the balance due upon the contract.
The answer of the respondents, which was served upon the appellants, alleges a complete performance of the contract. All. of the issues in the action were referred to a referee, and after one of the respondents had been called as a witness and it appeared that they
We think the referee had power to allow the amendment. The notion is upon a. contract1 by which the appellants, agreed to pay to the respondents a sum of money for furnishing the material and doing certain, work in the. construction of this building. Whether the right to z:ecover was based upon a complete pei'formance of the ■contract or a performance with the exception of certain particulars the performance of which was waived by the appellants, did not ■change the cause of action for which a recovez-y was sought. The ' cause of action was still upon the contract, to recover .the amount due under it. The court has power to allow an amendment i'ipon' the trial where' the amendment does not substantially change the cause of action to which the amendment relates; and as this cause •of action was not at all changed' by the amendment, there can be no doubt, we think, but that it was within the power of the referee, to allow it.
By the contract which is the basis of this cause of action,, the respondents agreed “ to furnish the materials for and do all the lathing and plastering work shown, on. plans and called for in the specifications necessary to complete the building known as Museum. Building & Power House in Bronx Park, ÍJ. Y. * - * *. All the materials and labor to be s.atisiactdry to R. W. Gibson,. Architect, and Jiohn H. Parker Company ; ” and the respondents further agreed to do all necessary cutting, drilling and patching in connection with other mechanics,, and to remove from, the premises,, from time, to- time as directed, all dirt and rubbish caused by their work, and for this the appellants agi'eed to pay the sum of $¡15.,700. The contract' between the. appellants and the city specified the plastering.
The only serious question presented is as to the correctness of the •allowance made by the referee for the uncompleted work and for what was alleged to be extra work. The referee disallowed several •claims made by the respondents for extra work; but as there is ho .appeal by the respondents from the judgment, the correctness of the finding of the referee in this respect need not be considered. The referee found that prior to' the filing of their notice of lien, the respondents had substantially performed their contract, except in certain particulars as to which performance was waived by both the appellants and the city; that the respondents were compelled to •do extra work and furnish some extra materials in and about the work which they were required to do by their contract, which extra work and materials were rendered necessary by the acts and facts for which the John H. Parker Company was responsible as between them and the respondents'. The. referee then allowed the contract price, also for certain extra work which was admitted by the appellants, and for certain extra plastering caused by defective brick work and construction, or made necessary by water or frost, aggregating $403.30. For this sum of $403.30 I do not think the appellants are responsible. The allowance is based upon the . testimony •of one of the respondents, and it was claimed that this extra plastering was made necessary by the imperfect manner in which the brick
An examination of the testimony does not show that the respondents were entitled to a greater allowance than that made by the referee: The appellants insist that the respondents should not be allowed to recover under the contract, as the referee has found that they did not entirely complete the contract. But the respondents did the work, the appellants accepted that work and .presented it -to the city as a compliance with their contract with the city, received
We think, therefore, that the judgment should be modified by reducing the judgment as entered to the sum of $3,647.84, and as thus modified it should be affirmed, without costs of this appeal.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment modified by reducing judgment as entered to the sum of $3,647.84.