Schieven v. Emerick

Per Curiam. Plaintiff has sued upon a contract under which he agreed to build a flat and a garage for defendants. Full performance was alleged in the complaint except as to date of completion. The court permitted proof of substantial performance under a charge to the effect that “ substantial performance ” was “ full ” performance. This is not the rule either as to pleading or proof. (Fox v. Davidson, 36 App. Div. 159; Tribune Assn. v. Eisner & Mendelson Co., 70 id. 172; Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 151 id. 465.) The balance claimed to be due on the $12,200 contract was $1,871.73 and interest. The jury gave plaintiff $700 in accordance with proof, making it clear that there had not been even substantial performance. The omissions and deficiencies were not unsr ostantial or inconsequential. (Spence v. Ham, 163 N. Y. 220.) The defendants — both in their answer and by due objection at the trial — protested against any effort by plaintiff to show waiver or substantial performance, or to recover upon anything akin to quantum meruit. We conclude that the deviation from the full performance pleaded was not “ trivial and innocent ” and that “ equity and fairness ” [469] do not demand that we hold that even substantial performance has been shown. (Jacob & Youngs, Inc., v. Kent, 230 N. Y. 239.) The judgment and order appealed from should be reversed on the law and facts and a new trial granted, with costs to appellant to abide the event. All concur. Present — ' Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ. Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.