81 N.Y.S. 586 | N.Y. App. Div. | 1903
In the month of June, 1897, Sarah Levenson was the owner of premises situated at the northwest corner of Seventy-second street and Lexington avenue and of the “ Hotel Premier,” erected thereon. She was desirous of having thé upper story of the hotel reconstructed and an additional story erected; and in that' month negotiated a contract with the plaintiff, a contractor and builder, for doing the work and furnishing the material according to plans and specifications which she had caused to be prepared by an architect. By consent of the parties work was proceeded with before the execution of the formal written contract, which was signed on or about the 29th day of June, 1897. Thé contract expressly provided that the owner should have the right at any time during the progress of the work ■ to make any alterations, deviations, additions or omissions from the specifications, drawings or requirements of the agreement concerning the work to‘be done or materials to be furnished, but that in such event there, should be added to, or deducted from, the contract price “ a sum or sums equal to a fair and reasonable valuation therefor ; provided, however, that no alterations, deviations or additions shall be charged or allowed for unless the party of the first part, or said architects,, shall direct in writing the making thereof.”. The original complaint, upon which issue was joined and the .order of reference made by consent of the parties, alleged the making of the contract in writing on the 29th day of June, 1897; that it provided that the work and all extra work contemplated by the contract
Upon the trial evidence offered by the plaintiff tending to show changes, alterations and omissions in the work called for by the plans and specifications made by direction of the architects or defendant’s husband, who was her attorney in fact representing her upon the work, was objected to as not within the issues, and the objection was sustained, the referee ruling that the plaintiff should have pleaded such changes, alterations and omissions, and the reference was adjourned for the purpose of enabling the plaintiff to make an application to amend the complaint. The plaintiff then gave formal notice of a motion before the referee at the adjourned day for the amendment of the complaintin these regards and changing the allegation of performance of the work provided for by the contract to an allegation of performance of the work as modified. Upon the return of the motion counsel for the defendant challenged the jurisdiction of the referee to entertain the same, but the amendment was allowed, upon the payment of fifty dollars costs, and the amended complaint was served. The defendant answered; the plaintiff replied, and the defendant demurred to the reply. The plaintiff then moved at Special Term for judgment on the demurrer as frivolous and the motion was granted. The parties then proceeded with the reference.
The plaintiff contended before the referée and still contends that no amendment Was necessary because the contract itself provided for changes, alterations and omissions at the election of the owner and made it the duty of the plaintiff to perform the work as thus modified. There is much force in this contention. It being the duty of the plaintiff to vary the work from the plans and specifications as directed by the defendant, her architects or representatives, i,t is difficult to see how the plaintiff could establish performance of his contract if he failed to comply with such directions. (Smith v. Wetmore, 41 App. Div. 290.) Inasmuch, however, as the work was not performed in accordance with the plans and specifications as
The plaintiff, however, under the ruling of the referee was obliged to amend. A referee has the same authority to allow an amendment to the pleadings as the court has upon the trial, as distinguished from a Special Term for the hearing of motions; and the only limitation upon this authority seems to' be that the amendment shall not change substantially the cause of action or embrace a new one. (Code Civ. ProCi' §§ 723, 1018; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; Price v. Brown, 98 id. 388; Bennett v. Lake, 47 id. 93 ; Knapp v. Fowler, 26 Hun, 200; S. C., 30 id. 512; Wilcox v. Onondaga Co. Savings Dank, 40 id. 297 ; Bullock v. Bemis, Id. 623.) If the amendment were necessary it thus appears that the referee possessed ample authority to. allow it.
It is contended that the terms upon which the amendment was allowed were inadequate. The terms upon which an amendment,, allowable by a referee, shall be permitted are within his discretion, subject of course, to review by this court (Smith v. Rathbun, 75 N. Y. 122; Van Ness v. Bush, 22 How. Pr. 481) ; but since the cause of action was not materially changed the allowance was quite liberal. (Hosley v. Black, 28 N. Y. 438.)
By the terms of the contract the work was to be performed by the 15th of August, 1897. It was not, in fact, completed until the
The only ground assigned for the refusal of the architect to give a
The contract price of the work was $8,000. The referee allowed a deduction of $292 for work and materials omitted by agreement between the parties and for some slight and unimportant omissions, and allowed $718.94 for extra work, and also interest on the balance unpaid from the date of completion.
The appellants contend that there were many changes, alterations and omissions in the work made without the consent of the owner or her- authorized agents. It would not be possible, within the reasonable bounds of this opinion, to discuss the various items or the evidence relating thereto. For the most part there was a conflict of evidence, the- testimony adduced on behalf of the plaintiff tending to show that such changes, alterations or omissions Were either directed by the- owner’s husband or the architects or. acquiesced in by them. There were a few omissions which the referee was justified in finding were made inadvertently and were not of such a substantial character as to require or even warrant a finding that the contract was not substantially performed. He was right, therefore, in making a deduction for these items and allowing a recovery for the balance.
The appellants also complain of the Workmanship in some respects and of the quality of the material furnished; but upon these points there was also a conflict of evidence. The referee was quite liberal to the appellants in the deduction made, and even though there be other small items for which a deduction should haVe been made, we are convinced upon the whole that substantial justice has been done.
There is no merit in the contention-' that certain changes, alterations and omissions were not authorized because there was no written order thereof. The evidence warranted a finding that the owner, through her husband, was present, and either consented to or acquiesced in all these changes.
The sole ground upon which -the motion to vacate the order of reference was made was that- the defendants only consented to a reference of the issues as they existed at that time. When parties
The appellants opposed the motion to continue the action against them on the ground that the cause of action did not survive the death of the owner, and they also claimed that the order was erroneous in providing that it was to be without prejudice to the proceedings already had. The appellants, as the successors in interest of the deceased owner, took subject to the lien and cause of action existing against her as well as the proceedings had to enforce the same prior to her death. (Code Civ. Proc. §§ 757, 3401; Moore v. Hamilton, 44 N. Y. 666.) The appellants rely on the case of Leavy v. Gardner (63 N. Y. 624), but that was a special proceeding to enforce a lien under chapter 500 of the Laws of 1863, and it was there held that section 121 of the Code of Procedure, permitting a revival of actions, did not apply to such a special proceeding. It is manifest that this has no application to a suit to foreclose a mechanic’s lien under the Code of Civil Procedure.
It is contended that the plaintiff’s reply was demurrable because it did not contain a denial of the material allegations of the counterclaims. This claim is based upon the form of the denial, which is that the plaintiff, replying to the defendants’ counterclaims, “ alleges that he denies all and singular the allegations in said answer which sets up a counterclaim.” While this form of denial is not commendable, we have held that it is sufficient. (Pray v. Todd, 71 App. Div. 391.) It is claimed that the demurrer was well founded because the reply, instead of denying the allegations of each counterclaim separately, referred to them specifically, and embraced them all in one denial. The demurrer was clearly frivolous, and judgment thereupon, accordingly, was properly given. (Code Civ. Proc. § 537.)
The contract provided that if at the time any payment became due on the contract any lien had been filed, or the. owner had notice of any claim against the contractor, sufficient might be withheld to indemnify the owner against such lien or claim. It does not appear that at the time the final payment on this contract became due any lien had been filed or that notice of any claim against the contractor
It appears from the testimony of thé plaintiff that about a year prior to the time he was testifying he assigned this cause of action. The claim is made that the action is not. prosecuted in the name of the real party in interest, and that the plaintiff is not entitled to recover on account of a provision of the contract to the effect that upon an assignment of the contract or of any moneys to grow due thereunder the owner might withhold sufficient. to indemnify her against such assignment. The record does not show on what day the testimony of the plaintiff, to the effect that he had assigned the contract about a year before, was given, and inasmuch as the action was pending nearly four years before the referee made his report, we cannot infer that such assignment was made before the commencement of the action, and the referee, in his opinion, states that it was not. If the assignment was made after the commencement of the action, in the absence of a substitution of parties, it could be continued in the name of the plaintiff. (Code Civ. Proc. § 756.)
The appellants complain that interest has been allowed on unliqub dated claims for extra work from the time of the completion of the contract. In the main, it appears that the extra work was performed on an agreement as to the compensation to be paid therefor. It may be that part of this claim was unliquidated. The appellant, however, refers us to no evidence clearly showing the fact, and we find hone. Of course, interest is not allowable on unliquidated claims of this kind, but if any such interest has been allowed it must necessarily be trivial in amount, and our attention has not been drawn to any evidence on this subject which would warrant us in modifying the judgment by deducting any amount on account of interest erroneously allowed.
The judgment should be affirmed^ with costs.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ. concurred.
Judgment affirmed, with costs.