Judges: Patterson
Filed Date: 1/24/1896
Status: Precedential
Modified Date: 11/12/2024
This is an action to foreclose a mechanic’s lien filed against certain premises in the city of New York, of which the defendant, John E. O’Brien, was the owner. The plaintiff was employed, under a written contract, to do certain plumbing work in the said premises, and to furnish the materials therefor, the whole stipulated price being $3,740. The lien also includes an item of $28 for extra work. It appears by the report of the referee before whom the case was tried that $2,000 was paid by the defendant, O’Brien, on account of the contract price, leaving the balance claimed of $1,768. The answer of the defendant sets forth, substantially, that the contract was not performed in accordance with the requirements of certain specifications, which are to be taken as forming part of the contract, and that there was a failure of the plaintiff to perform his contract in a good, substantial, and workmanlike manner; and a counterclaim is set up for damage alleged to have resulted from the nonperformance of the contract by the plaintiff, in the sum of $1,882. The referee allowed on the counterclaim the sum of $125.50, thus reducing the plaintiff’s claim to $1,-642.50, for which judgment was directed.
It is claimed by the appellant that the proof does not establish that the plaintiff substantially performed the contract, and we are asked to examine a thousand folios or more of testimony, and a number of exhibits, to extract evidence of seemingly inconsiderable omissions and defects in the work which was done by the plaintiff. There is no certificate in the case that the record contains all the evidence that was submitted to the referee. We have, however, looked into it sufficiently to ascertain that, on all of the matters of alleged defects specified in the fourth point of the appellant’s brief, there was conflicting evidence, and the determination of the referee respecting what was established by that evidence we are not called upon now to interfere with. So far as the details of the work were concerned, we see no reason to differ with the referee in the conclusion that there was a substantial compliance with the contract.
It appears by the record that upon the trial a witness (Arrow-smith) was allowed to give testimony of a conversation had between himself and one Marshall respecting the absence of a certificate of the architect that the work was properly done, such a certificate being mentioned in the contract as a condition precedent to the payment of the full amount. The objection and exception to this evidence seem to have been taken after the testimony was all given, and, from all that appears, it may have been upon that ground that the referee overruled the objection. But what was said was competent evidence of a refusal of the architects to give the certificate required by the contract, and thereby excuse the plaintiff for its nonproduction. We do not find anything in the other exceptions to the rulings of the referee, nor to his findings, of sufficient gravity to disturb the conclusion at which he has arrived. On the evidence, what the referee has allowed on the counterclaim seems to be ample.
Concerning the form of the judgment, to which defendant states an objection, it is true that it directs that the plaintiff recover of the defendant the whole amount adjudged to be due; but it also provides for the sale of the premises, and that, if there be any deficiency remaining on the sale, the amount thereof be specified in the