68 N.Y.S. 522 | N.Y. Sup. Ct. | 1901
The suit is in equity to foreclose certain mechanics’ liens filed against five buildings on the north side of One Hundred and Sixteenth street, 200 feet easterly from Eighth avenue, in the borough of Manhattan, belonging to the defendant Long. Plaintiff filed a lien for $4,013, alleged to be due to him from the owner, and the Union Granite Company, a subcontractor employed by the plaintiff, filed a lien for $675, to enforce the payment of that sum out of the moneys due from the owner to the plaintiff. Four independent contractors with the owner also filed liens and joined in the action to enforce them, to-wit: Hallaban & Ahearn, Alban A. Murphy, Frederick Brandt, and the J. Jones & Son Company. Certain other liens filed by Messrs. Grimes, Mansfield & Person, were settled and discharged of record. First. As to the plaintiff’s lien: The plaintiff’s contract was to do the ironwork of the five houses for $16,000, payable in seven installments, as the work progressed, upon the certificate of the architect that the payments had been earned. The owner claims, that the work done and material furnished were not of the quality required by the contract and the plans and specifications. It is true that in some unimportant details the work was not technically up to the requirements, but the old rule of strict performance is somewhat relaxed (Woodward v. Fuller, 80 N. Y. 312; Nolan v. Whitney, 88 id. 648; Crouch v. Gutmann, 134 id. 45), and substantial performance only is required. “ Substantial performance, as defined by these and other cases, permits only such omissions or deviations from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, are remediable without doing material damage to other parts of the building in tearing down and reconstructing, and may without injustice be compensated for by deductions from the contract price.” Spence v. Ham, 27 App. Div. 379, 382. The contract was substantially performed within the rule laid down in the case
Ordered accordingly. ,