
    Jabez E. Van Orden, Respondent, v. Hugh MacRae, Appellant.
    Second Department,
    July 9, 1907.
    Building contract — substantial performance — deduction for defects.
    In an action on a building contract a finding of substantial performance by the plaintiff is not inconsistent with a finding that deductions should be-made for small omissions or defects in the work, not willful or intentional.
    Appeal by the defendant, .Hugh MacRae, from a judgment off the Supreme.Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 28th day of November, 1905, upon the decision of the court rendered after a trial at the Suffolk Special Term.
    
      Percy S. Dudley, for the appellant.
    
      Timothy. M. Griffing, for the respondent.
   Gaynor, J.:

The learned trial judge made a finding of fact of substantial, performance of the contract, by the-plaintiff,- but deducted from his recovery an-item of'$100 to pay for covering some hot water pipes with asbestos, the obligation tó do which was left uncertain by the words of the contract,-another of $100 to repair damage to some stucco caused by it being laid on brick that was too moist. There is a deduction of another item which does not enter into the question, of performance. The learned judge in doing so followed the law as it had been long laid down and followed in this state, especially in respect of building contracts, i. e., that substantial performance is performance, and that in such a case deductions may be made from the contract price for small omissions or defects in the work occurring in good faith (Glacius v. Black, 50 N. Y. 145; Rowe v. Gerry, 112 App. Div. 358; Ramstedt v. Brooker, 113 id. 45). The' contract price in this case was ) $29,400, to which was added about $3,000 for extra work. It cannot be said as matter of law that by reason of the omission and the defect for which the learned trial judge made a total deduction of $200 the contract was not performed, i. e., substantially performed, and that therefore the plaintiff cannot recover on a complaint for performaneé — has,' in fact, forfeited the right to recover at all. There are. cases where the .omissions or defects are so large a's to require a conclusion as matter of law that the contract was not substantially ..performed, or the same conclusion maybe required by their being willful and'intentional; but this is not stich a case, The question here' was one of fact, and the 'finding of the trial judge thereon is sufficiently supported.. The trial was. long, laborious, and painstaking, and the result should not be disturbed.' • -

The judgment should be affirmed:

Present—‘Woodwabb, Jenks, Gaynob and Bigh, JJ,

Judgment unanimously affirmed, with costs.  