Zack v. Gans

LEHMAN, J. [1] Plaintiff sues' for $275, being the amount unpaid under a contract made by him with the defendants for certain alterations to premises owned by the defendants. The defendants claim that under plaintiff’s pleading he cannot show substantial performance, but must be held to proof of strict performance. This contention is not tenable. The plaintiff is claiming under a contract. The contract itself provides that the plaintiff shall perform “all work according to plans and specifications; it being agreed by the owners that substantial performance of the contract shall be satisfactory to them if satisfactory to departments and architects.” The plaintiff is therefore entitled to payment under the contract itself upon proof that he has substantially performed to the satisfaction of the municipal departments and the architect. In my opinion the plaintiff has failed to furnish such proof. The plaintiff has apparently failed to perform the contract in several minor details, but the omission of these details is perhaps insufficient to prevent a recovery under the contract. He has, however, omitted totally to furnish and set a 1,400-gallon tank on the roof as required by the specifications. The cost of this tank is $94, and apparently the cost of setting it in place would be $149. The plaintiff claims that he originally offered to do the work for $2,100, and the owners asked him whether it could not' be done cheaper. Plaintiff then suggested that the tank be omitted, and one of the defendants said: “If the department is satisfied, I will be satisfied.” If this evidence was admitted to show that the parties intended to strike out the provision for a tank in the specifications, it is, of course, incompetent. [2] If competent for any purpose, it can be considered only for the purpose of aiding the court in construing the words “substantial performance," and enabling the court to hold that these words covered a performance of the work, even though this item of the specifications were omitted. [3] The plaintiff must still, however, prove as part of his case that the architect and the building department were satisfied as required by the contract in case of substantial performance. He has proven that the architect, who is confessedly unfriendly to the defendants, is satisfied, but there is.no dispute that there is a violation on record against the premises on account of the omission. To meet this proof, the plaintiff has introduced in evidence a letter purporting to be from the tenement house department, which states “that the inspector reports that the water supply is adequate without a roof tank and the department will therefore approve the amendment of June 20th, 1910, to omit the tank.” Aside from the technical objection that the signature of the commissioner is unproven, the letter is valueless, since it does not show that the amendment of June 20, 1910, required no [739] substitute for the tank, nor that the amendment has been complied with. [4] Without first showing that he was acquainted with the rules and regulations of the building department, the architect was permitted to testify that it was contrary to the custom of the building^ department to remove a violation until all the specifications of the violation have been complied with, and that the violation against these premises contains other specifications besides the omission of the tank. This testimony, even if the proper foundation had been laid, is entirely nugatory in view of the fact that defendants’ attorney thereafter stated to the court: “I have the witness from the building department. I could probably get a concession that that violation that I have offered in evidence is still open, and that the case has been sent to the corporation counsel for attention. The building violation as to there being no tank. That there is a violation against these premises.” After some discussion between the attorneys, the defendants’ attorney then stated without objection: “It is conceded that the violation is still a record in the building department, and it has been referred to the corporation counsel. I want to show that the case is in the hands of the corporation counsel to enforce the penalty against our clients because that has been omitted.” The court thereupon said: “Never mind.” [5] The plaintiff’s attorney claims that in any event the defendants have admitted that the job is complete and accepted by making a payment of $500 which under the terms of the contract was to become due only “when the job is complete and accepted.” The defendants, however, claim that this payment was made under protest, and upon plaintiff’s promise to remedy all the defects. In any event, however, the contract itself provides that for all payments the certificate shall be obtained from and signed by the architect" to the effect that under the terms of the contract the payments are properly due; “said certificate in no way lessening the full and final responsibility of the contractor.” Even if the payment of the $500 is to be regarded in some sense as an admission that the work was completed, the admission was not conclusive and is overcome by the proof that the plaintiff had not in fact completed his contract. It follows that the judgment should be reversed and a new trial granted, with costs to appellants to abide the event. All concur.