86 N.Y.S. 1066 | N.Y. App. Div. | 1904
The action was brought to foreclose a mechanic’s lien. The controversy on the appeal is between defendants. The appellant was the general contractor, and the respondent Wetmore is the owner of the premises. The appellant filed a lien which has been sustained to the extent of $211.66 with interest. In arriving at this balance the court has deducted from the contract price of the work and the value of extra work the sum of $363.20 for defective work, and the further sum of $1,550 as a penalty for failure to complete the work within the stipulated time. The appellant contends that these deductions should not have been made, and these are the only questions presented by the appeal.
The contract was in writing and it was executed on the 13th day of August in the year 1900. The contractor agreed to erect, pursuant to drawings and specifications thereto annexed, three buildings to be known as Nos. 314, 316 and 318 West Forty-second street, “ on or before the expiration of seventy-two working days * * * under a penalty of twenty-five dollars per day for every day thereafter.” On the 19th of February, 1901, the owner through the architect at the suggestion of the appellant acbepted the buildings without prejudice to his rights under the contract, the contractor agreeing on demand to do any further work requested'“tomeet the requirements of the specification and contract.” The trial court found that between the expiration of the seventy-two working days allowed by the contract for the completion of the work and the nineteenth day of February when it was conditionally accepted,
In arriving at the number of days for which the contractor was liable for the penalty no deduction was made for delays for which the owner was responsible, and it appears by uncontradicted evi
During the progress of the work the owner determined to wire the building for electric light. According to the testimony of the contractor he was ready to proceed with the plastering on the seventeenth day of November but deferred doing so at ■ the instance of the architect to enable the owner to determine whether he wished to wire the premises for electric light; that subsequently the owner determined in the affirmative and that this delayed the work of plastering for “ three or four weeks ” or from the 17th day of November until “ after Christmas.” This testimony is not expi*essly controverted. The architect concedes that wiring the building for electric light took eleven days but he does not say whether this delayed the plastering or how long. . The architect, also during the progress of the work, determined to substitute iron girders for certain wooden posts specified in the contract at the agreed extra compensation of $150. ' The contractor testified that this delayed the entire work ten days, and the architect concedes that it delayed it three days. The contractor was also directed to depart from the requirements of the contract with reference to the arrangement of the front steps descending into the area or basement. He says that this delayed the work three or four" days but the architect admits that the delay was six days. There was certain rock excavation which the parties agreed was extra work. The contractor testified that this caused a delay of twelve days and the architect concedes a delay of three days. The contractor testified that the work was delayed three weeks on account of the failure of the owner to decide on the color of paint to be used on the buildings, and the architect concedes a delay of four days through this cause. The contractor testified that according to the original plans with reference to which the contract was made, the foundation wall at one side was not to be constructed as low as the bottom of the cellar, but that the building department required a further excavation and that the foundation wall be carried down to the level of the bottom of the cellar and that the wall upon adjacent premises be underpinned, and that this caused a delay of one month. The owner’s architect testified concerning this that on September twentieth a
The respondent claims- that, by paragraph 12 of the contract, which provides that the contractor shall, at his own expense, “ comply with all sanitary laws, ordinances and rules, and all other orders of the Board of Health or other authorities affecting the cleanliness, safety, occupation and use of the said premises, and the sidewalk and the street in front of the same,” the appellant assumed . the risk of delays arising from violations of the building laws and ordinances. We are of opinion that this provision of the contract must be limited to the work which the contractor undertook to perform, and that as between him and the owner he did not become an insurer of the sufficiency of the plans or assume any responsibility for delays caused by the interference of the authorities owing to the fact that the plans and specifications had not been prepared in accordance with law or in conformity to the lawful requirements of the local authorities. These delays all occurred before the conditional acceptance of the buildings by the owner, and many of them occurred during the first seventy-two working days after the contract was executed.
According to the undisputed evidence the contractor was entitled to have deducted a large part of, if not the entire sixtydwo days, for which he has been charged with the penalty. We cannot, however, make findings of fact, and, therefore, a new trial must be granted.
It was evidently assumed on the trial that the twenty-five dollars for each day’s delay in completing the work, designated in the contract as a “ penalty,” was intended as liquidated damagesj There is no provision of the contract other than those quoted which sheds any light on this question. Equity does not enforce penalties. This was, undoubtedly^ a proper case for the parties, by an appropriate liquidated damage clause, to stipulate the damages that should be paid upon a failure to complete the work within the time specified. ( Ward v. Hudson River Building Co., 125 N. Y. 230; Curtis v. Van Bergh, 161 id. 47.) Presumptively, however, where the parties unqualifiedly specify a forfeiture as a penalty it was their intention that the amount specified should be a penalty or security for the actual damages and not liquidated damages. (Colwell v. Lawrence,
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Yaw Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.