98 N.Y.S. 380 | N.Y. App. Div. | 1906
This case has been here twice on appeal from judgments for the plaintiff and certain of the defendants (86 App. Div. 349 ; 109 id. 153). The complaint was to recover the final balance due on a building contract, i. e., it was for performance of the contract. The first judgment was reversed for the reason that performance was not shown by the plaintiff, but non-performance, and excuse therefor, whereas a recovery could be had under the complaint only for performance. The second judgment was affirmed because substantial performance, which is performance, was shown and found by the trial court. A realignment was ordered (110 App. Div. 916). The learned counsel for the appellant understands that the second judgment should have been reversed because it was for substantial performance, which he understands from our two former opinions to be not performance, but non-performance. We do not'wish to leave any such impression as that. There is a wide difference. Substantial performance is performance, and entitles the plaintiff to recover under a complaint for performance, and especially is that so under building contracts where some of the infinite details may be easily overlooked. (Glacius v. Black, 50 N. Y. 145 ; Spence v. Ham, 163 id. 220.) It may well even happen that the plaintiff may not know of existing omissions when he draws his complaint for performance. When such omissions are proved by the defendant, the plaintiff may recover on his complaint for performance if they be unsubstantial and not willful, but the cost of supplying them has to be deducted.
The judgment is affirmed.
Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred.
Judgment affirmed, with costs.
