Ryan v. Voelkl

The plaintiff brought this action to recover the sum of $179.90, being the balance due on contract and for extra work done on an extension to the defendant’s premises. The answer embraces an admission to the extent of $97.20, a general denial and a counterclaim in the sum of $300 for imperfect work and delay. Respecting the item of delay no proof was offered. As to the other issues the conflicting evidence was weighed by the court, and resulted in an adjustment of the respective claims in favor of the plaintiff in the sum of $116. We find that conclusion amply justified by the evidence. The 'defendant seeks reversal upon the denial of his motion to dismiss the complaint, on the-ground that there was failure to prove that the work was done to the satisfaction of the architect and in compliance with the laws of the health department. We find no provision in the agreement introduced in evidence calling for the satisfaction of *841the architect, and the plaintiff, therefore, became entitled to recover upon establishing substantial performance and showing approval of the health authorities. There was abundant evidence of substantial performance. Although there may have been slight defects and unintentional omissions, the plaintiff in good faith intended to comply with the contract and substantially did so. Woodward v. Fuller, 80 N. Y. 312; Crouch v. Gutmann, 134 id. 45. Whether the contract had been substantially performed, was a question of fact-to be determined on all the circumstances of the case by the trial court. Bolan v. Whitney, 88 N. Y. 648; Smith v. Brady, 17 id. 189. Therefore the plaintiff became entitled to recover the contract price less the damage resulting from the defects and omissions (Woodward v. Fuller, supra), provided the work was done according to law. That fact the architect admitted. There was, consequently, no foundation for the motion, the judgment is just, and must, therefore, be affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.