
    SIDNEY DILLON, et al., Plaintiffs and Appellants, v. JOHN S. MASTERTON, Defendant and Respondent.
    In a contract for work and labor, where there is a provision that the work should be completed by a certain date, and be paid for upon completion, and such work is not completed at the time limited for its performance, but is proceeded with afterwards, with the assent of the party for whom the work is being done, a recovery may be had for the work done according to the rate of compensation fixed by the contract.
    In such a case “time is not deemed to be of the essence of the contract.”
    When “time is of the essence of the contract,”it must be made to appear so in express terms, and not be left for inference or presumption from doubtful expressions therein.
    In the case at bar, if the work had not been completed at the time specified, the party for whom it was to be done could have rescinded the contract at that time, and the other party could not have recovered for the work done.
    ■If the party did not rescind, but allowed the work to go on, he must pay for the same at the rates specified m the contract, and if he required it to be completed within a reasonable time, he must give the other party notice thereof, before he can terminate the same.
    Present, Freedman, Curtis , and Speir, JJ.
    
      Decided February 1, 1875.
    This is an appeal by the plaintiffs from a judgment entered upon the report of a referee dismissing the complaint.
    The action is to recover for labor and materials.
    The defense is a general denial, and a counter-claim is interposed, claiming damages for the default of the plaintiff.
    On February 13, 1873, the plaintiffs contracted, in writing,' to furnish the materials and complete the filling of a certain portion of Seventy-sixth-street, and to complete the work by June 1st following, and the defendant agreed that upon completion of the work, he-would pay the plaintiff twenty cents per cubic yard for the material furnished and used.
    The plaintiff failed to complete the work at the time specified. The defendant did not then terminate the agreement, but from time to time he called on the plaintiffs to proceed with it, which they did to some extent. Subsequently, by a notice, dated December 27, 1873, and served on the plaintiffs, about that time the defendant terminated the contract, and the plaintiffs ceased work.
    The plaintiffs had furnished and filled in twenty thousand one hundred and seventeen cubic yards of materials, and this action is to recover for the same at the contract price of twenty cents per yard, amounting to four thousand and twenty-three dollars and forty-four cents.
    The referee finds that the plaintiffs furnished materials and did work under the contract after June 1, 1873, at the request and direction of the defendant, and resumed work in pursuance of the contract from time to time, at the request and direction of the defendant, up to about December 25,1873.
    The view taken by the referee in dismissing the complaint was, that by the contract performance was to precede payment, and the plaintiffs having failed to-perform on their part without fault on part of defendant, can recover nothing, for the labor and materials furnished.
    The referee also held that the defendant was not entitled to damages for delay, other than a dismissal of the complaint, and judgment in his favor for costs.
    
      Alex. Thain, for appellants.
    
      Samuel Hirsch, for respondents.
   By the Court.—Curtis, J.

It is not a condition of the contract, that there shall be no money paid for the work, unless it is done at the time fixed. The contract provides that the work is to be paid for upon completion. The referee finds that the defendant was to pay on the completion of the work at the time specified. If it had been the design of the parties to bind themselves to the stringent condition expressed by the words “ at the time specified,” it must be presumed they would have inserted it in the contract, and the finding of the referee that there was such a condition would then be sustained. In its absence, such a condition can not be assumed as a part of the agreement. When time is of the essence of a contract, it must be made to appear in express terms, and not left to be inferred from doubtful expressions.

It seems to be well settled, that where work done under a contract, is not completed at the time limited for its performance, but is proceeded with thereafter with the assent of the party for whom the work is done, a recovery may be had for the work done, but the plaintiff is confined to the rate of compensation fixed by the contract, unless during the progress of the work he gives notice of an intention to demand a different rate of compensation.

It was the right of the defendant to rescind the contract upon the failure to complete, and if he had done so, the plaintiff could not have recovered. But the defendant thereupon elected not to do so, and then, not only suffered the plaintiffs to go on, but repeatedly urged and directed them to proceed with the work, thus both parties, after the time expired, treated the contract as still in force.

If the defendant had wished to annul the rights of the plaintiffs under the contract, he should upon their failure to complete at the day designated, have -given them a notice requiring performance within some reasonable time specified, and that in case of default, their rights would be deemed abandoned (Merrill v. Ithaca & O. R. R. Co., 16 Wend. 586; Sinclair v. Tallmadge, 35 Barb. 602; Myers v. DeMier, 52 N. Y. 647; Hubbell v. Von Schoening, 4 Supr. Ct. 649).

The plaintiff’s action for the price should have been sustained, leaving the defendant to his remedy for any injury he may have suffered by the plaintiff’s delay in completing the work. The finding of the referee as to the damage sustained by the defendant is rather vague as to the amount, and not supported by the evidence with satisfactory clearness.

These views, if they are correct, dispose of the principal questions raised by the appeal, and the judgment appealed from should be reversed, with costs to appellants, to abide the event of the suit, and with the usual order in respect to the order of reference, and a new trial ordered.

Freedman and Speir, JJ., concurred.  