Cramer v. Esswein

Per Curiam.

The evidence shows that plaintiff did not substantially perform his contract. Although the contract required that he install eight radiators, he installed only seven, leaving the bathroom without any provision for heat. He also, contrary to the agreement, installed a second-hand bathtub and wash basin; and he willfully removed the doors and other fixtures from the furnace. The doctrine of substantial performance has no application where there is an intentional, deliberate and willful departure from the contract. (Bullinger v. Interboro Brewing Co., Inc., 194 App. Div. 205.) “ Substantial performance is performance, the deviations permitted being minor, unimportant, inadvertent and unintentional.” (Gompert v. Healy, 149 App. Div. 198; Mitchell v. Dunmore Realty Co., 126 id. 829. See, also, Ray Mechanics’ Liens & General Contracting, § 31.)

The judgment should be reversed upon the law and the facts, with costs, and the complaint dismissed, with costs. Findings and conclusions of the Special Term at variance with this opinion are reversed, and this court makes new findings to be prepared and submitted in accordance with this decision.

Kelly, P. J., Manning, Young, Lazansky and Hagarty, JJ., concur.

Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. Findings and conclusions of the Special Term at variance with the opinion are reversed, and this court makes new findings, to be prepared and submitted in accordance with this decision. Settle order on notice.