Charles H. Tibbits, Respondent, v. Julius M. Cohen, Appellant, Impleaded with Frank Klein, Respondent, Appellant, and Carlo Florio and S. H. Graham, Inc., Respondents.
Second Department,
June 22, 1917.
Contract — building contract construed — substantial performance — mechanic’s lien — foreclosure.
A building contractor undertook to perform work to conform to architect's plans and specifications and also to abide by the architect’s decision in the event of any error or difficulty in the specifications. The architect was discharged and the owner undertook to complete the agreement substituting himself as his own architect. At a meeting of the parties to test a heating plant the contractor made a substantial offer for the substitution of a larger boiler with a further sum . for other matters in issue and the owner after stating that he would take the proposition under consideration failed to answer the offer and subsequently notified the general contractor that he considered the contract as abandoned and would himself complete the same.
In an action to foreclose a mechanic’s lien, held, that in the circumstances there was a substantial performance; that the percentage rule has no application, and that the lienor was properly decreed what was equitably due him.
Separate appeals by the defendants, Julius M. Cohen, as owner, and Frank Klein, as contractor, from a judgment of the' Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1916, upon the decision of the court after a trial at the Westchester Special Term, in an action to foreclose a mechanic’s hen.
The hens grew out of the removal and remodeling of a dwelling house, including excavation of cellar, with installation of plumbing and heating fixtures, and the erection of a garage on Dearborn avenue in Rye, N. Y. Frank Klein was the general contractor. Four subcontractors, including the plaintiff Tibbits, also filed hens for their work and materials furnished. Although Klein’s notice of hen claimed $4,466.65, this embraced the amounts claimed by his subcontractors, which the court found aggregated $1,454.17. In the judgment, however, Klein was decreed the sum of $2,850, from which was taken the *681sums payable to the subcontractors, leaving as Klein’s net recovery $1,395.83. On this appeal the owner maintained that substantial performance had not been shown, so that Klein’s recovery should be wholly reversed. On behalf of Klein it was urged that his gross recovery should have been $3,995, with interest, instead of $2,850.
Elwood J. Harlam [William Baruch with him on the brief], for the appellant Cohen.
Peter Klein, for the appellant Frank Klein.
Per Curiam:
The record presents a situation where a building contractor undertook a job to conform to architect’s plans and specifications, also to abide by the architect’s decision in the event of any error or difficulty in the specifications. Within about a month the architect named was discharged, and the owner undertook to carry forward the enterprise, substituting himself as his own architect. We are satisfied that substantial justice has been done by the decree. In view of the disallowance in the decree of $1,145 out of a total of $9,482.80 (about twelve per cent), the owner urges that such a ratio of incomplete work should forbid a finding of substantial performance. However, on December 13, 1914, as the parties had met to hold a test of the heating plant, the contractor made a substantial offer towards the substitution of a larger boiler, with a further sum for other matters in issue. The owner stated he would take this proposition under consideration, and thereupon the work was suspended. Without any answer to that offer, the owner, however, on January 27, 1915, notified Mr. Klein that he considered the contract as abandoned, and that he would himself complete the same by employing other contractors. In that situation, we think the percentage idea has no application, and that the lienor was properly decreed what was equitably due him.
The judgment should be affirmed, but as both parties have appealed, the affirmance is without costs.
Jenks, P. J., Stapleton, Mills, Putnam and Black-mar, JJ., concurred.
Judgment affirmed, without costs.