Hatch, J.: I am linable to agree with the conclusion reached. by Mr. .Justice Woodward in this case. Before the contract was made between the plaintiff’s assignor and Mrs. Lefebvre the defendant had notice of it, and knew its terms and conditions. By virtue of that contract he must be presumed to have known that plaintiff’s assignor had obligated herself to pay damages at the rate of twenty-five dollars a day during the period covered by the taking down and erection of the party wall.
It was in view of this condition that the agent of plaintiff’s assignor inquired of the defendant the time which would be necessarily occupied in taking down- and putting up the wall; and his answer, in view of .the conditions and the obligations assumed, constituted a contract upon his part to tear down and erect a structure within three weeks.
Or, if it be not held to be' a legal binding contract to perform the work within that time, it, at least, clearly imposed upon him the duty of performing the work within a reasonable time, as he was bound to make the sum that plaintiff’s assignor was required to pay as light as possible.
'It is clear that the delay of fifty-one days beyond" the period when the Wall should have been completed, if unexcused, was an unreasonable delay; and such being the fact, the defendant was bound .to justify the delay by proof of conditions excusing it, and the burden is upon him to establish' the sufficiency of the excuse. (Spann v. Erie Boatman’s Transp. Co., 11 Misc.
Rep. 680; affd. on appeal, 157 N. Y. 694.) The proof in the present case tended to establish that the occasion for the delay was the failure of the iron company to deliver -the iron work required for the building; but whether such delay was the fault of the defendant or of the iron company does not appear ; non constat that it might not have been wholly the fault of the defendant. But the plaintiff was not bound to establish this fact.
When he had given evidence of his contract and .. the non-performance thereof by the defendant, then the law imposed a burden upon 15 the latter of explaining the cause of the delay. Mere failure by a third party to deliver material necessary to complete the work might or might not satisfactorily excuse the performance within the given time, but this became a question of fact for the jury.
It was not a question which could be disposed of by the court, as the plaintiff made a prima facie case, which,- if unanswered, entitled him to recover. As I view the evidence, merely showing failure of a third party to deliver materials, did not per se answer the case made by the plaintiff. It was, therefore, error to dismiss the com-' plaint, for which the judgment should be reversed. All concurred, except Woodward, J., who read for affirmance.
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