32 N.Y.S. 364 | N.Y. Sup. Ct. | 1895
This is an action instituted to foreclose a mechanic’s lien alleged to have been created by performance of a contract entered into by the plaintiff with defendant Hopkins. ' The contract was executed on September 12, 1891, and the work called for by its terms was to be completed on April 1, 1892, and it is admitted that it was not finished until July 10, 1892. That the plaintiff delayed in commencing work under the contract is undisputed. The defendant Hopkins, as late as November 6, 1891, complained to the plaintiff and architect of the delay in its prosecution. At that date they were only laying the foundation. That the architect appreciated the justice of such complaint is manifest from the fact that he testifies that he repeatedly urged plaintiff to hurry the work. Hopkins continued to complain of the tardiness in the prosecution of the work, and frequently urged the plaintiff to be more expeditious with the work. About January 11, 1892, Hopkins insisted that the chimneys, arches, and fireplaces were illy and unskillfully
The testimony throughout shows to my mind that the plaintiff did not prosecute the work called for by the contract with diligence and dispatch; that whatever delays might inferential!y be charged to Hopkins were more than counterbalanced by the apparent delays and lack of energy and attention of the plaintiff in performing such contract. It is- clearly shown that Hopkins, with the exception of the delays hereinbefore noted, did everything in his power to facilitate and hasten the work. The promptness with which he paid the sums alleged to be due under the contract, and the fact of his pecuniary advances to plaintiff to relieve him financially, and to provide him with funds to prosecute the work, his waiver of the performance of several items required by their agreement, as also his celerity in paying the charges for extra plumbing and mason work, all abundantly prove this. On the other hand, the testimony clearly shows the plaintiff’s lack of interest in the work; that he farmed out every part of the general construction to various subcontractors, over whom Hopkins had no authority, and with whom he could not advise; that, upon the occasion of such complaint to the plaintiff, he threw the blame or cause of the same upon one of these subcontractors; that said contract was so sublet without the written consent of Hopkins, as the contract obligated him to do; his almost entire failure to give the work Ms personal supervision, as evidenced by Ms rare and infrequent visits to the premises during the progress of the work; that, although behind time on this contract, he transferred mechanics from the Hopkins building to the Eamsay house, for whose construction he also had an agreement. I am of the opinion that, if the plaintiff had used reasonable diligence and dispatch, the building would have been ready for occupancy, notwithstanding the delays attributed to defendant Hopkins, on May 1, 1892. If it had been completed at that date, the uncontradicted testimony shows that the premises could have been leased
Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulates to reduce the judgment to $379.35, with interest from July 16, 1892. If such stipulation is filed in 20 days, judgment so modified is affirmed, without costs. All concur.