
    JACOB HAAG et al., Resp’ts, v. CHARLES HILLEMEIER, App’lt.
    Contract—When performed.
    An action to foreclose a mechanics’ lien, filed to secure a balance of $700 remaining unpaid, and alleged to be due on a written builder’s contract to do the mason work on three houses in Mount Vernon, N. Y., in accordance with certain carefully drawn plans and specifications, for the sum of $1,600. The .third trial of this cause was held before Judge Dykman at special term.
    
      Joseph S. Wood, for resp’ts; Bartlett, Wilson & Hayden, for app’lt.
   Barnard, P. J.

This is the third appeal in this case. The questions are almost entirely questions of fact, and the findings on these questions have always been in favor of the plaintiff. The dispute arises out of a building contract. The houses were small and inexpensive, being only to cost $1,600 to build them all. The contract was in writing and called for six inches of foundation stone work below the level of the cellar floois. It was claimed on all the trials that this provision was omitted before the contract was signed in view of an abatement of price. The present trial renders the plaintiff’s theory probable for the cost if the work was not disproportionate to the price abated. The case is made stronger for the plaintiff and the fact that this is the third finding should require an appellate court to uphold it. The other findings are well supported by the evidence. It is admitted that the contract was well done as-to work and material. The houses have neither settled or cracked, the omissions are all which the defendant avers in his defense. As to some of these, the same were left undone at the request of the defendant; as to others, they were the result of the defendant’s action, like the cistern, which was so located as not to permit a connection of the water pipes for the house, with them, which is one of the omissions proven. As the case now is presented the damages allowed are compensatory for the' omission and the contract is properly found to have been substantially performed.

The judgment should, therefore, be affirmed.

Pratt, J., concurs; Dykman, J., not sitting.  