
    The Ansonia Brass and Copper Company, Pl’ff, v. Charles A. Gerlach, App’lt, and James Curren, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    1. Appeal—Finding.
    No error is apparent from an omission to find facts as to which no finding was requested.
    
      2. Contract—Performance.
    A performance of a building contract, substantially and in good faith, by the contractor is all that is required to entitle him to recover.
    3. Damages—Delay in performance.
    One who has been deprived of the use of a building, in consequence of the inexcusable delay of another who has undertaken to make improvements or repairs, is justly entitled to indemnity for the loss.
    Appeal from a judgment entered on the referee’s report in favor of the defendant-respondent and against the defendant appellant. Action to foreclose a mechanic’s lien claimed pursuant to the provisions of the Mechanic’s Lien Law (ch. 342, L. 1885).
    
      John ’ H. V. Arnold and Gilbert W. Minor, for app’lt; Deyo, Duer & Bauerdorf (Robert E. Deyo, of counsel), for resp’t.
   Bischoff, J.

The action was originally brought by the An-V sonia Brass and Copper Company to foreclose a lien claimed by it, pursuant to the provisions of the Mechanic’s Lien Law (ch. 342, L. 1885) and against the defendants Charles A. Gerlach, as owner and contractor, and James Curran, as lienor. Subsequent to .the commencement of the action it was discontinued so far as the plaintiff was there affected and directed to proceed upon the issues tendered by the answers of the defendants, Curran and Gerlach, respectively. Curran claimed to he entitled to a lien for work, labor and services rendered and materials furnished, under two certain contracts with Gerlach, one for the supply of the steam heating and fitting „in the building known as “ The Gerlach ” and situated on Twenty-Seventh street between Sixth avenue and Broadway, in the city of New York, the other for gas piping and fitting in the same building, and for extra work. The aggregate amount of the lien claimed was $6,110.55, with interest, of which $4,300 represented a balance of $7,600, the agreed compensation under the contract for steam heating and fitting, $1,092.92, a balance of the fair and reasonable value of the gas piping and fitting, and $717.63, the value of the extra work. Gerlach denied the complete performance of the contract for steam heating and fitting on Curran’s part that the gas-piping and fitting and extra work were of the value claimed by Curran, and that the extra work was such in fact. He furthermore interposed a counterclaim against Curran for expenses alleged to have been incurred in improving the work undertaken by Curran and necessitated by the latter’s negligence and unskillful performance. The referee found, as matter of fact, that Curran had performed the contract for steam ■heating and fitting on his part except to the extent of $322.30 as to which he was prevented by Gerlach, and to $93.25 for work necessarily omitted because of changes and alterations in the plans and specifications which were directed by Gerlach ; and that, after crediting Gerlach with the payment of $3.000, admitted by Curran, there was due the latter from the former $4,184.45 under the contract last above mentioned. The referee further found, as matters of fact, that Curran, at Gerlach’s request, furnished labor and materials which were not included in the contract for steam heating and fitting, of the reasonable value of $717.63 ; and that he also furnished and fitted 16,150 feet of gas-piping for which Gelarch had agreed to pay at the rate of twelve cents per lineal foot, amounting to $1,938, on account of which there had been paid $1,000, leaving due a balance equal to $938, and interest. As additional facts the referee found that, in connection with the gas-piping and fitting, Curran supplied the labor and materials for cutting off and replacing a number of gas centers, which were reasonably worth $144, and for work in the boiler room worth $10.92. Accordingly it was adjudged that there was due Curran from Gerlach the aggregate sum. of $5,995, with interest, for which he had a lien upon the premises described in the complaint. No errors in rulings in the admission or exclusion of evidence are urged upon this appeal, and we are relieved of inquiry concerning the sufficiency of evidence in support of the counterclaim because the record is without any request to find the facts of which it was predicated by answer, ITo error is apparent from an omission to find facts as to which no finding was requested. Burnap v. Nat. Bank, 96 N. Y. 12b ; Thomson v. Bank of British North Amer., 82 id. 1; Wood v. Lary, 124 id. 83 ; 35 St. Rep. 53 ; West v. Van Tuyl, 2 Silv. Ct. App. 501; 28 St. Rep. 549 ; Lyons v. Cahill, 18 id. 375; Hugg v. Shank, 1 Silv. Sup. Ct. 153; 23 St. Rep. 312. Appellant’s only contention is that the recovery is against the evidence and the weight of evidence. The record, however, discloses abundant evidence in plaintiff’s behalf and to the effect that all the work undertaken by Curran was performed in a good workmanlike manner, and that the materials used were proper and suitable for the purposes for which they were intended, and of the quality contracted for; that in so far as the contract for steam fitting and heating, remained incompleted, it was due either to Gerlach’s omission to have the building in suitable condition to enable Cur-ran to proceed or to deviations from the original specifications, which were sanctioned and directed by Gerlach. There is also evidence from which it appears that the charges for work other than the work included in the contracts for steam heating and fitting, and gas-piping and fitting, were fair and reasonable. Gerlach was credited with an allowance of $322.30 for work, under the steam heating contract as to which performance was prevented bv Gerlach. We think, therefore, that the referee was justified in his conclusion that Curran had substantially and in good faith, completed the several contracts entered into and this was all that was required to entitle him to recover. Johnson v. De Peyster, 50 N. Y. 666; Phillip v. Gallant, 62 id. 256; Woodward v. Fuller, 80 id. 312; Flaherty v. Miner, 123 id. 382; 33 St. Rep. 681. And whether or not the contract has been substantially performed is a question of fact depending upon all the circumstances of the case, to be determined by the trial courtv Nolan v. Whitney, 88 N. Y. 648; Bowery Nat. Bk. v. Mayor, etc., 63 id. 336. True, there was evidence for the defendant Gerlach, tending to establish that the work was negligently and unskilfully done, and that the materials used by Curran in the performance of the work were of poor and inferior quality, by reason of which much of the work had to be done over and the materials used replaced by better. This, however, raised but a conflict of evidence which it was the province of the trial court to determine, and with that determination, in the absence of apparent incredibility or intrinsic improbability of the truth of the evidence adduced for the prevailing party, the appellate court will not interfere. Baird v. Mayor, etc., 96 N. Y. 567 ; Crane v. Baudouine, 55 id. 256. On the trial, counsel for the defendant, Gerlach, moved to be allowed to amend the answer by adding as an item of the alleged damages constituting the counterclaim, rents lost in consequence of defendant Curran’s delay in the performance of the work undertaken by him and the negligent and unskillful performance of the work. This as denied by the referee",’ upon the ground that the damages intended to be claimed were too remote. The ground alleged for the ruling we think, was erroneous. One who has been deprived of the use of a building, or of machinery in consequence of inexcusable delay caused by another who has undertaken to make improvements or repairs, is justly entitled to indemnity for the loss. Such damages are within the reasonable contemplation of the parties. Southerland on Damages, vol. II, § 703 ; Griffin v. Colver et al., 16 N. Y. 489 ; Cassidy v. Le Fevre, 45 id. 562 ; Ruff v. Rinaldo, 55 id. 664; Hexter v. Knox, 63 id. 561. Defendant Grerlach, however, was not entitled to the amendment as of course. The language of the Code of Civ. Pro., § 723 is that the court “ may ’’allow an amendment" at or during the progress of the trial upon such terms as to it shall seem just. The granting of it, therefore, rests in judicial discretion ; and since it does not appear that the referee has determined that defendant Grerlach was deprived of the use of his building owing to any delay caused by Curran, or that the referee was requested to find the fact of such delay, and since the facts that defendant Curran duly performed his several contracts, in so far as he was permitted to perform them, effectually refutes any claim that defendant Grerlach was deprived of the use of his building by delay caused by Curran, and, particularly, since defendant Grerlach must, for reasons already stated, be deemed to have abandoned his attempted counterclaim altogether, the error, if such committed in the denial of the motion for leave to amend the answer cannot be urged to have operated' prejudicially to defendant Grerlach. Mixter v. Mixter, 13 Week. Dig. 360.

The judgment should be affirmed, with costs.

Bookstaver, P. J. and Prior, J., concur.  