
    Theodore Wegener, Appellant, v. James H. Butler, Respondent.
    (New York Common Pleas—General Term,
    February, 1894.)
    In an action for work, labor and services performed under a contract which provided that the work should be done agreeably to the drawings and specifications made by the architect and signed by the parties and annexed thereto, but which had no drawings or specifications annexed, the plaintiff was allowed to give in evidence an unsigned paper, purporting to be the specifications furnished him and upon which he made his estimate. Defendant then offered in evidence another unsigned paper, which he testified 'was the paper submitted to the plaintiff for the purposes of the estimate, and which contained provisions not in the other, but such paper was excluded. Held, error; that such exclusion in effect prevented the defendant from showing what the contract was, and that it was not performed by the plaintiff, as claimed by the answer.
    Appeal from an order of the General Term of the City Court of New York which reverses a judgment for plaintiff on a verdict in his favor and grants a new trial.
    Action to recover upon a contract for work, labor and services rendered, and materials furnished, in the construction of a building and for extra work. The answer denied performance of the contract and that any extra woi’k was done with defendant’s consent. It also interposed a counterclaim for loss of rents occasioned by plaintiff’s delay.
    
      Denis MeMahon, for appellant.
    
      A. O. Vanderpoel, for respondent.
   Bischoff, J.

Plaintiff in this action sought to recover a balance alleged to be due him for work, labor and services rendered and materials furnished, in the construction of defendant’s building, pursuant to a written contract therefor between the parties, and for extra work upon the same building. Defendant, among other things, denied that plaintiff had completed the work required of him, and that any extra work whatever, other than such as was paid for, had been done at his instance and request. The record shows that plaintiff’s claim for extra work arose in part, as alleged, from the fact that the drawings and specifications submitted to him for the purposes of his estimate of the cost, preliminarily to the making of the contract, called for the construction of a building sixty-five feet and two inches wide, while the building constructed by him under defendant’s direction and that of his architect was sixty-six feet and four inches in width. The action was tried and resulted in a verdict for plaintiff for an aggregate amount upon both causes of action, from the judgment whereon defendant appealed to the General Term of the court below, where it was reversed for rulings on the trial which were prejudicial to defendant and are hereinafter noticed, and a new trial granted. Instead of availing himself of the new trial plaintiff appeals from the order to this court, having given the statutory stipulation for judgment absolute against him in the event of affirmance.

The contract for the construction of the building required plaintiff to do the work therein referred to “ agreeably to the drawings and specifications made by Frederick Lohse, architect, and signed by the parties and hereunto annexed.” No drawings or specifications, however, signed by the parties, or otherwise, were annexed to the contract, and thus it became necessary to inquire concerning the drawings and specifications intended, for which purpose resort liad to be taken to extrinsic evidence. St. John v. Potter, 46 N. Y. St. Repr. 883; Browne Parol Ev. 125. In this behalf plaintiff was allowed to give in evidence a paper purporting to be specifications relating to the building mentioned in the contract, which was unsigned, but which plaintiff maintained was the paper submitted to him, and from which he estimated the cost of construction at the sum named in the contract subsequently entered into between him and defendant, and which the latter thereby agreed to pay. Thereafter defendant’s counsel offered in evidence another paper, also purporting to be specifications relating to the same building, also unsigned, which defendant had previously testified to as being the same paper which was submitted by him to plaintiff for the purposes of the estimate, and from which plaintiff’s estimate was made before the contract was entered into. To the introduction of this last-mentioned paper plaintiff’s counsel objected, and it was thereupon excluded under exception for defendant. A comparison of the two papers demonstrates that the paper excluded, if found to be the specifications intended by the parties to be signed and annexed to the contract, would require plaintiff to comply with the provisions therein for “ timber,” roof floor,” “ tinning,” “window frames and sashes,” “sashes,” “doors” and “ painting,” all of which are omitted from the paper admitted in evidence. The exclusion of the paper offered for defendant in effect prevented him from showing what the contract-was, and that it was not perfoi'ined by plaintiff, as claimed by the answer. That it was material error, therefore, to exclude-the paper seems to he a proposition so clearly correct as not to admit of dispute.

The order appealed from should be affirmed and judgment, absolute for defendant entered upon plaintiff’s stipulation, with costs of this appeal and of the court below.

Bookstaver and Pryor, JJ., concur.

Order affirmed and judgment absolute ordered for defendant on stipulation, with costs.  