
    Third Department,
    March, 1928.
    Joseph C. Dearstine, Respondent, v. Fayette D. Dunckel and Another, Appellants, Impleaded with Otto Frank and Others, Respondents.
    
    
      Contracts — building contracts — house was out of plumb when constructed through fault of contractors and defect was not waived — heating plant did not meet specifications — substantial compliance not shown — acceptance by owners not shown by moving into house.
    
    Appeal from a judgment of the Supreme Court, entered in the Albany county clerk’s office on July 9, 1927.
    
      
      Reversing 130 Misc. 281.
    
   Per Curiam.

The house, when finished, was several inches out of plumb, through the fault of the contractors. The learned trial court found that this substantial defect had been waived by the owners. The evidence did not justify the finding. The boiler of the heating plant gave unsatisfactory service. It was not the kind specified in the contract. No explanation of this was given. Substantial compliance was not shown. (Jacob & Youngs v. Kent, 230 N. Y. 239.) The owners did not accept the work by moving into the house. (Cawley v. Weiner, 236 N. Y. 357.) The judgment appealed from should be reversed upon the law and facts and a new trial granted, with costs to the appellants to abide the event. Van Kirk, P. J., Hinman, Whitmyer, Hill and Hasbrouck, JJ., concur. Judgment reversed on the law and facts and new trial granted, with costs to the appellants to abide the event. The court disapproves of findings of fact numbered five, six, eight, nine, ten, eleven and twelve.  