
    Patrick Flannery, Resp’t, v. Aslan Sahagian, App’lt.
    
      [Supreme Gourt, General Term, Second Department,
    
    
      Mled December 10, 1894.)
    
    Contract—Building—Substantial performance.
    A building contract has not been substantially performed, where the omitted work cannot be done except at great cost and with risk to the building.
    Appeal from a judgment in favor of the plaintiff.
    
      Joseph F. Daly, for app’lt; F X. Donoghue, for resp’t.
   Brown, P. J.

This action was brought to recover a balance due upon a building cop tract, and for extra work. Under the findings of the learned referee, there was not a substantial performance of the contract. There was a failure to comply with the specifications, in very material matters, and the referee found the omitted work could not now be done, “ except at great cost, and with great risk to the building.” It is only inadvertent and unimportant omissions or defects, and such as may be remedied by slight expenditures, that may be disregarded in a building contract. In this case the building has not been, and cannot be, completed as the plaintiff agreed to build it. In Oberlies v. Bullinger, 132 N. Y. 598; 44 St. Rep. 851, there was an error in the construction, by which the ridge of the roof was five inches lower than called for by the plans. This error did not affect the appearance or utility of the building, and, as it appeared in proof that all other defects were remedied by the contractor, it was held that there was a substantial performance of the contract. Bnt in this case there is not only a failure to make the ceiling of the north store of the height required by the contract, but the cellar ceilings are in some places nearly two feet lower than the specifications require, stone foundations and stone bottoms were omitted under the party walls, and in many other respects the contract was not complied with. In Crouch v. Gutmann, 134 N. Y. 45; 45 St. Rep. 470, it was thought the rule of substantial performance was extended to its full limit. The majority of the court, in that case, felt bound by the findings of fact, but it was said in the prevailing opinion that “ the cost of completion of work, by remedying defects or supplying omissions in it to meet the requirements of a contract, may be so great as to preclude the conclusion of substantial performance.” A party is not to be denied, by the applidation of this rule, the right to have his building erected in the manner agreed upon, and as, in this case, the referee has found that the work omitted by the contractor “cannot now be done, except at great cost and with great risk to the building,” the plaintiff should not be permitted to recover, and the judgment should be reversed, and there should be a new trial.

All concur.  