48 Misc. 501 | N.Y. App. Term. | 1905
The plaintiff undertook, in writing, with the defendant first named, to “ provide all the materials and perform all the work for the carpenter work * * * all the carpenter work to be done in ” the alteration of certain buildings the defendants owned, or were interested in, for $2,100. Claiming to have fulfilled, substantially, all of his undertaking, the plaintiff brought this action and has recovered judgment for a balance of $300 on the agreement and $492, besides, for extra work. These sums are not supported sufficiently by his proof, which fails to show substantial performance of his undertaking. He agreed, for example, to, but did not, alter all the closet partitions between the dining rooms and kitchens, fill up door openings to dining rooms, cut new openings in kitchens and furnish new doors, trim and hardware. As excuse for nonperformance hz offered the assertion: “ My agreement specifies distinctly that I shouldn’t do it,” although there was for it only, the provision “ The ice box partition is not to be removed.” Again he said “ I did not do those new doors; tl- it was excepted from my contract.” The contract shows no such exception. Of sixteen new wardrobes, he put in bo t two, a substantial omission, amounting to ten per cent, i Ms whole undertaking, according to testimony, not condieted, that the wardrobes of rather elaborate fashion and ti ings were worth $15 a piece. For another omission, one i n ialling 15 per cent, of the contract price, he claimed verbal horization from Mrs. Silverman, who denied it and who s plausibly supported by the architect and by her son.
Scótt and Gildersleeve, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
