71 Misc. 149 | N.Y. Sup. Ct. | 1911
This action was brought to foreclose a mechanic’s lien filed- by the plaintiffs, a firm of architects, against the defendant as the owner of premises' in the borough of the Bronx.
The claim of the plaintiffs was for a balance alleged to be due for architect’s fees^ and the defendant set up a counterclaim for damages, upon the ground that the plaintiffs failed
The learned trial court fo-und as matter of fact that plaintiffs, as architects, agreed to prepare plans and specifications for the erection of certain buildings and as architects to superintend and supervise the erection and construction of said buildings and the work of the contractors thereon until the completion thereof, and to counsel and advise the defendant to the best of their professional ability as architects, respecting the planning, laying out and construction of said buildings, including all details relating thereto, especially with reference to style, durability and compliance with the provisions of law bearing on the construction of buildings on said premises, and defendant agreed to pay plaintiffs for the labor and services, so to be performed, five per cent, upon the cost of construction of said' buildings; that pursuant to said contract plaintiffs prepared plans'and specifications for the erection of said buildings and began to supervise the construction thereof; that List & Rose as builders and the defendant as owner entered into a contract whereby said builders agreed to construct said buildings upon.said premises in accordance with said plans and specifications for the sum of $15,564, which contract, among other .things, provided that the architects might condemn and order the removal of unsound and def ective work. The trial court also found that the buildings so constructed failed to comply with the specific provisions of the plans and specifications in many respects, detailed in various findings, and that many of such defects and omissions were discoverable and remediable by the plaintiffs in the exercise of due, ordinary and reasonable care and skill, and were obvious and apparent during the course and progress of the work; that, by reason of the negligence, incompetence and lack of reasonable skill in the supervision and superintendence of the work of construction of said buildings, the same were defective in the manner and respects as found; and that, by reason of the
The trial court also found as conclusions of law that the plaintiffs did not perform and did not substantially perform the obligations of their contract, as architects, on their part to be performed, and conducted their superintendence and supervision in a negligent and improper manner, and failed to exercise in such superintendence reasonable technical skill, by reason whereof the buildings constructed are defective in the respects as found, and failed faithfully to perform their contract as architects by reason of their failure to condemn improper work called to their attention and by reason of their failure to advise and assist defendant in the remedying of the defects.
The defendant has paid the builders the full amount of their contract price, deducting, however, with their consent, the sum of $1,000 to protect him from possible loss by reason of the fact that the buildings, as constructed, encroached upon the public street, and has paid the plaintiffs the sum of $224.50.
The learned trial judge dismissed the complaint and, against the objection and exception of the defendant, dismissed the counterclaim.
■The court having found that the plaintiffs were guilty of negligence and had failed to perform their duties with due or ordinary skill and that various serious defects in construction had been shown to be due to such negligence, the defendant was entitled to show the cost of putting the buildings into the bondition in which they would have been had the plaintiffs performed their contract, and to recover a sum which would leave him as well off as he would have been had plaintiffs fully performed their contract. Straus v. Buchman, 96 App. Div. 274. If such amount should exceed the amount unpaid the plaintiffs on their contract, he was entitled to recover the excess. Lennon v. Smith, 124 N. Y. 582. In dismissing the counterclaim, the learned justice expressed the opinion that the counterclaim had been exaggerated by the defendant and by his witnesses. That may have been true; but, in view of the court’s findings and of
The judgment, in so far as it dismisses the counterclaim, should be reversed, and a new trial ordered, with costs to appellant to abide the event.
Giegerich and Gavegan, JJ., concur.
Judgment, in so far as it dismisses the counterclaim, reversed, and new trial ordered.
