D’Amato v. Gentile 66 N.Y.S. 833

D’AMATO v. GENTILE.

(Supreme Court, Appellate Division, Second Department.

October 5, 1900.)

Building Contracts—Actions—Nonperformance.

A contractor cannot recover a balance due under Ms contract for the . erection of a building, where he has failed in its performance by substituting, without the owner’s consent, inferior workmanship and materials in place of those required, and, by making changes and omissions, has effected a large saving to himself, and consequent damages to the owner, and the latter has not waived the nonperformance.

Appeal from special term, Kings county.

Action by John G. D’Amato against Eugenio Gentile to foreclose a mechanic’s lien for labor rendered and materials furnished in the erection of a building for defendant under a contract, and to recover for extra work and materials. From a judgment for defendant, plaintiff appeals.

Affirmed.

The following is the opinion of the court below (MATTICE, J.):

In this action, regularly and duly brought on for trial at a special term of the court held in and for Kings county, and the issues therein have been tried and heard, on the 5th day of April, 1899, I, the justice presiding at such trial, do make and file the following decision:

The defendant is entitled to judgment dismissing the complaint on the merits, with costs, and also an extra allowance of five per cent, on the amount claimed by plaintiff in his complaint, which allowance is hereby awarded to defendant. The reasons for such decision are as follows: (1) The plaintiff did not perform the contract alleged in the complaint, but omitted and departed from the plain meaning of the same, and his work was defective. The char*834acter and extent of such defects, omissions, and departures were so great that it cannot be said fairly that plaintiff has substantially performed on his part, but he has, in the main, purposely made the changes complained of by the defendant, and willfully disregarded and ignored the plain meaning and intent of the contract. (2) Plaintiff deliberately attempted to take advantage of the-defendant by substituting at nearly every opportunity inferior workmanship- and material in the place of those required by the terms of the contract, and by making omissions, changes, and defective work, thereby effecting a large saving to himself and consequent damage to defendant, and depriving defendant of the benefit of his contract, and forcing upon defendant, without any fault of the latter, a building much changed from the contract, plans, and specifications, and inferior in many respects to what was intended by said1 plans, specifications, and contract. (3) Independent of the defects, changes, and omissions proved by defendant, but upon which no valuation was placed, the damages to the defendant by reason of the said defects, changes, and omissions proved and valued amounted to nearly twenty per cent, of the contract price; such amount being based largely upon the-difference in cost at the time the work was done. These defects, changes, and omissions were so general that they permeated nearly the entire structure. (4) Defendant did not consent to the said changes, omissions, or defects; nor did he, either expressly oí" impliedly, by his acts or conduct, waive the nonperformance by plaintiff, but, On the contrary, endeavored to obtain full performance. And judgment is directed': accordingly.

Argued before GOODRICH, P. J., and BARTLETT, JERKS, WOODWARD, and HIRSCHBERG, JJ.

J. Herbert Watson, for appellant.

Richard A. Rendrich, for respondent.