47 N.Y.S. 567 | N.Y. App. Div. | 1897
This cause comes up for review on exceptions ordered by the trial justice to be heard in the first instance by this court, and the question is, whether under the proofs the plaintiff was entitled to the verdict rendered in its favor. The action was brought to recover the contract price of certain work and labor performed and materials furnished by the plaintiff to the defendant under a formal written contract. The plaintiff alleges in its complaint that it strictly performed the contract. That allegation was denied and a plain issue was thus raised concerning it.' That was the real issue before the jury, to which, under the pleadings, the evidence was to be addressed. It appeared that the purpose of the contract was to obtain a water-tight cellar for a court house which was being built for the defendant. The end to be obtained was distinctly and specially contracted for, but it appeared in proof that the work to be done was to he performed according to certain specifications binding upon the plaintiff, and from which it was not at liberty to depart. There was conflicting evidence as to those specifications being adequate to accomplish the required result which the plaintiff contracted to produce. There was also evidence tending to show that the specifications were complied with, but that, notwithstanding such compliance, the object of the contract was not attained. Substantial conformity of the work with the specifications may have been shown; but the right to recover under the contract does not depend altogether on compliance with' the specifications, but, as this action is framed, upon doing that which the plaintiff contracted to do as a result or consequence of conforming to the specifications. When this cause was before us on a former appeal (see 13 App. Div. 231), we held that the plaintiff was bound to furnish a water-tight and not a' water-drained cellar. We sent the case back for a second trial on matters that did not relate to the construction of the contract. There was a question of fact left open not only whether the plaintiff had done the work according to the specifications, but also whether it had produced the result or condition required- by following the specifications, and not by substituting an apparatus the use of which might make a water-drained, but not a water-tight cellar. And though the apparatus was put in with the approval of an employee of the ■
The exceptions must be sustained and the verdict set aside and a new trial ordered, with costs to defendant to abide the event.
Van Brunt, P. J., Barrett and Rumsey, JJ., concurred; Williams, J., dissented.
Exceptions sustained, new trial ordered, costs to defendant to abide event. ■