144 A.D. 920 | N.Y. App. Div. | 1911
The following is the opinion of the referee:
Referee: This is an action brought to recover a balance Claimed to be due for the erection of a country house for defendants’ testator. It is admitted that if the contract has been strictly performed,- the plaintiff is entitled to the sum of $13,535.70, with interest from May 1, 1907. The defendants claim that the contract provisions as to time were not complied with, and that' defects in the exterior walls, roof and window frames occasioned large damages, for which it is sought to counterclaim. On final submission no claim is made by defendants for delay, which the uncontradicted evidence shows to have been due to the acts of owner and architect and not to those of the contractor. Defendants claim that roof, walls- and window frames were guaranteed watertight under separate, independent contract provisions which have not been performed. Plaintiff maintains that it has fully complied with the plans and specifications, and that so far as these may have been modified in the case • of the window frames, the defendants’ testator directed the change without its consent. The legal principles announced in MacKnight Flintic Stone Company v. Mayor (160 N. Y. 72) are applicable to the disposition of this case. In that case the plaintiff agreed to furnish “all the materials and labor for the purpose and make water tight ” a boiler room/ coal room and cellar of a court house and prison in the manner arid under the conditions set forth in annexed specifications, which were most precise as to all details of material and construction. There was an independent covenant that “at the entire completion of the building all of the work must be gone over by the contractor arid turned over to-the city by him in perfect order and guaranteed absolutely water and damp proof for five years from the date of the acceptance of the work.” Any dampness or water breakage within that time was to be made good by the contractor. Water and dampness appeared in the boiler-room immediately after the plaintiff had completed its job, and the architect consequently refused the usual certificate. Evidence was-given to show that every requirement of the plans and.specifications as to materials furnished and work done had been literally complied with, that the work had been inspected daily on behalf of the defendant and no objection at any time had been made as to method or materials. The specific question presented for determination was whether the plaintiff could recover without making the floor of the boiler room absolutely waterproof, although it had conformed in every respect' to the plan