128 N.Y.S. 737 | N.Y. App. Term. | 1911
In my opinion the plaintiff has failed to furnish such proof. The plaintiff has apparently failed to perform the contract in several minor details, but the omission of these details is perhaps insufficient to prevent a recovery under the contract. He has, however, omitted totally to furnish and set a 1,400-gallon tank on the roof as required by the specifications. The cost of this tank is $94, and apparently the cost of setting it in place would be $149. The plaintiff claims that he originally offered to do the work for $2,100, and the owners asked him whether it could not' be done cheaper. Plaintiff then suggested that the tank be omitted, and one of the defendants said: “If the department is satisfied, I will be satisfied.” If this evidence was admitted to show that the parties intended to strike out the provision for a tank in the specifications, it is, of course, incompetent.
“I have the witness from the building department. I could probably get a concession that that violation that I have offered in evidence is still open, and that the case has been sent to the corporation counsel for attention. The building violation as to there being no tank. That there is a violation against these premises.”
After some discussion between the attorneys, the defendants’ attorney then stated without objection:
“It is conceded that the violation is still a record in the building department, and it has been referred to the corporation counsel. I want to show that the case is in the hands of the corporation counsel to enforce the penalty against our clients because that has been omitted.”
The court thereupon said: “Never mind.”
It follows that the judgment should be reversed and a new trial granted, with costs to appellants to abide the event. All concur.