14 N.Y.S. 548 | N.Y. Sup. Ct. | 1891
This action was brought to recover an alleged balance due to the plaintiffs upon a contract for altering defendant’s building 96 and 98 Maiden lane, under a written contract entered into between the parties. The referee found that on the 21st of March, 1890, the defendant entered into a contract with the plaintiffs whereby the plaintiffs agreed to malee certain alterations in the defendant’s building according to drawings and specifications made by one George A. Schellinger, an architect, and also to provide the materials for the completion of said work; for which the defendant promised and agreed to pay the plaintiffs the sum of $14,199, as follows: $4,000 when the third tier of beams was placed in position; $4,000 when the roof was on; and the balance, $6,199, after the entire work was completed. There was no time fixed in the contract for the completion of the work thereunder. It was provided in said contract that if, at any time during the progress of the work, the plaintiffs failed to provide a sufficiency of materials and workmen, the defendant should have power to provide the materials and workmen, after three days’ notice given to the plaintiffs to finish the work, and that the expenses should be deducted from the amount of the contract. Immediately after the execution of the agreement the plaintiffs commenced said alterations and additions in conformity with the provisions of the contract, and continued Said work until the 20th of August, 1890, when the defendant refused to permit the plaintiffs to complete the contract, and prohibited them from entering the said buildings. Prior to the 15th of August, 1890, the plaintiffs refused and neglected to supply a sufficiency of workmen and materials, on which day the defendant, having just and reasonable cause, served on the plaintiffs a notice in writing, according to the fourth section of the contract, and thereupon proceeded to finish the work left undone under the contract. Prior to the 20th of August the defendant had made the first and second payments speci