Tibbits v. Cohen

The record presents a situation where a building contractor undertook a job to conform to architect’s plans and specifications, also to abide by the architect’s decision in the event of any error or difficulty in the specifications. Within about a month the architect named was discharged, and the owner undertook to carry forward the enterprise, substituting himself as his own architect. We are satisfied that substantial justice has been done by the decree. In view of the disallowance in the decree of $1,145 out of a total of $9,482.80 (about twelve per cent), the owner urges that such a ratio of incomplete work should forbid a finding of substantial performance. However, on December 13, 1914, as the parties had met to hold a test of the heating plant, the contractor made a substantial offer towards the substitution of a larger boiler, with a further sum for other matters in issue. The owner stated he would take this proposition under consideration, and thereupon the work was suspended. Without any answer to that offer, the owner, however, on January 27, 1915, notified Mr. Klein that he considered the contract as abandoned, and that he would himself complete the same by employing other contractors. In that situation, we think the percentage idea has no application, and that the lienor was properly decreed what was equitably due him.

The judgment should be affirmed, but as both parties have appealed, the affirmance is without costs.

Jenks, P. J., Stapleton, Mills, Putnam and Black-mar, JJ., concurred.

Judgment affirmed, without costs.