
    Allen P. Becker, Resp't, v. The National Prohibition Park Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8,1893.)
    
    Contract—Building—Extra work.
    A contract for building certain sheds required the contractor to furnish all the material except the stone for the piers, which defendant was to furnish, and defendant was also to do the grading. In an action to recover for extra work, the contractor claimed that defendant did not give a good grade; that the piers were of irregular height, and made higher in some cases by a greater excavation than was necessary, and that he was compelled to carry up the piers higher than the contract called for, and to use small stones furnished in place of single ones. This was contradicted. Held, that the question was one of fact, and that if defendant violated his contract upon which the plaintiffs rested, plaintiff was entitled to recover for his extra expenditure in completing the work.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial.
    Action to recover a balance upon a building contract and for extra work.
    
      Alexander S. Bacon, for app’lt; W. J. Powers, for resp’t.
   Barnard, P. J.

The defendant employed the plaintiff to furnish the materials except stone, and to do the work for the erection of some 400 feet of sheds in Richmond county. It was admitted that the last instalment, $565, was unpaid. The plaintiff seeks to recover this sum and $22.50 in addition for extra work. The answer avers that the materials were not good, and also that the work was not skillfully done, to the defendant’s damage of $250. The answer also avers a tender of the last instalment of $565, which the plaintiff refuses to take. Upon the trial, the principal issue was as to the extra work. The agreement bound the plaintiff to lay up the stone piers under the shed, and the defendant was to furnish the stone. The defendant was to do the grading. The plaintiff gave evidence tending to show that the defendant did not make an even grade, or a good grade; that the piers were of irregular height, and made higher in some cases by reason of a greater excavation than was needed at particular points, and that the plaintiff was compelled to do the rest of the work to carry up these piers higher than the contract and specifications called for; that the defendant’s superintendent told the plaintiff to do the work, and that he must use small stones of the defendant instead of one stone, as was designed, and not of Uniform height

The defendant gave evidence tending to contradict plaintiff’s theory, and the case went to the jury under a charge from the court that if the $22.50 was made necessary by the improper grading of defendant, plaintiff was entitled to recover therefor. It was a pure question of fact and the finding of the jury should settle it. The fact being settled, the principle of law is sufficient to support the plaintiff’s claim. The defendant violated an independent contract upon which the plaintiff’s contract rested. It was plaintiff’s duty to mitigate the damages therefrom as much as he could, and to that end he furnished the work to availability. He was thus entitled to recover for his extra expenditure. Kidd v. McCormick, 83 N. Y., 391.

Judgment affirmed, witli costs.

Dykman and Pratt, JJ., concur.  