
    Joseph Buellesbach and Others, Respondents, v. William Henderson, Appellant.
    First Department,
    March 23, 1906.
    Contract — action for agreed price for erecting iron work — findings by referee that plaintiff has not performed according to specifications inconsistent with judgment for plaintiff.
    When, in an action to recover the agreed price for work, labor and services performed under a contract to erect iron work on a building, a referee.gives judgment for the' plaintiff and also finds as a fact, at the request of the defendant, that certain parts of the work were not completed by the plaintiff according to the specifications, the judgment and the finding are inconsistent, because the finding shows that the plaintiff has not performed so as to entitle him to recover.
    Appeal by the defendant, William Henderson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of November, 1904, upon the report of a referee.
    
      Henry C. Henderson, for the appellant.
    
      C. V. Pallister, for the respondents.
   Ingraham, J.:

The complaint alleges that the plaintiffs entered into a contract with the defendant William Henderson, a copy of which was annexed to- the complaint, by which they were to furnish certain ironwork for four houses on the west side of Eagle avpnue for the sum of $796.90; that they proceeded with the said work and completed the same according to the terms of the said contract, and that no part of the contract price has been- paid, except the sum of $100, and asks judgment for the sum of $696.90. The defendant answered, denying that the plaintiffs completed and -performed the work mentioned in the complaint according to the terms of the contract- under which the same was to have been performed, and alleged that the plaintiffs have refused, neglected and failed to perform said work in the manner required by the terms of the contract. The referee’s' report found that the plaintiffs had entered into a contract with the defendant as alleged in the complaint, that they completed the same in accordance with the terms of the said. contract, and that no part of the contract price has been paid except $100, and, as a conclusion of law, that the plaintiffs are entitled to a judgment for $696.90. The referee then found at -the request of the defendant that one Diederick filed with the bureau of braidings, plans and specifications for erecting the buildings in question, which plans and specifications were approved- by the said bureau, including the ironwork in question herein; that the ironwork mentioned in the said contract was understood between the plaintiffs and defendant to refer to the completion of ironwork upon the buildings in xquestion; that prior to the time of making the agreement between the parties hereto, the plaintiffs had entered into an agreement with one Henry S. Diederick to construct the .ironwork upon the same .buildings; that by the agreement between the plaintiffs and the said Diederick the plaintiffs were required to complete the ironwork upon the buildings in question in accordance with the plans and specifications therefor so approved by and on file in the bureau of buildings in the city of New' York; that the said Diederick was unable to perform the contract upon his part; that the ironwork mentioned in the agreement between the plaintiffs and the defendant, annexed to and made a part of the complaint herein, is the same ironwork referred to in the agreement between the plaintiffs and the said Diederick, and the same ironwork shown upon the plans and referred to in the specifications approved by and filed in the bureau of buildings by the said Diederick as aforesaid ; that by the said plans and said specifications the fire escapes to be constructed upon each of the buildings aforesaid were to be connected by a slanting ladder; the upper fire escape upon each house was to connect with the roof of the house by an iron ladder and two iron bridges were to be constructed connecting two of the buildings; that the fire escapes constructed on each of the buildings in question are connected by vertical ladders; the upper fire escape on each building has not been connected .with the roof of the building by an iron ladder, nor by any other method ; the buildings have not been connected by bridges nor by another means; that the expense necessary to make the ironwork constructed by the plaintiffs upon the houses in question conform to that shown upon the plans and described in the specifications approved and filed, as aforesaid, and to the agreement between the parties, is $350.

It appears that these findings are entirely inconsistent with the referee’s report. By the contract made between the plaintiffs and Diederick, he was to perform the work according to the plans and specifications, which required that the fire escapes Were to be connected by a slanting ladder, and the upper fire escapes upon each house were to be connected on the roofs of the houses- by an iron ladder and two iron bridges. The fire escapes as constructed did not comply with this contract, and the necessary expense to make the ironwork constructed by the plaintiffs conform to that shown upop the plans and described in. the specifications is $350. Certainly the plaintiffs were not entitled to recover the full amount of the contract when they had not performed the work upon the performance of which depended their right to recover in this action. There is no finding of any waiver by the defendant of the provisions of the contract. The form of the contract sustains the finding made by the referee, on the requests of the defendant. It is apparent that the fire escapes as constructed were not such as required by the plans and specifications as filed in the building department. Certainly the plaintiffs cannot recover for the completion of the contract when the referee has found expressly that the contract as made by them was not completed and the work done was not in accordance with the contract. The. cause of action is based upon the completion of the, contract in accordance with the plans and' specifications. The referee has found that the plaintiffs .did not complete the contract in accordance with the plans and specifications -and they were riot,, therefore, entitled to judgment in this action.

The judgment appealed from 'must, therefore, be. reversed and a new trial ordered before another referee, with costs to the appellant to abide the event. ' ,

O’Brien, P. J., Patterson Laughlin and Clarke, JJ., concurred.

Judgment reversed, new trial ordered before another referee with costs to appellant to abide event. Order file  