
    Samuel Rochkind and Others, Copartners, Composing the Firm of Rochkind, Cohen & Co., Respondents, v. Judah Jacobson, Appellant.
    Second Department,
    May 1, 1908.
    Mechanic’s lien — foreclosure—failure to perform.
    Under a complaint in an action to foreclose a mechanic’s lien alleging substantial performance, there can be no recovery if more than ten per cent of the work was not completed, and no waiver of substantial performance is alleged or proved.
    Appeal by the defendant, Judah Jacobson,,from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of March, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term, certain issues of fact having been submitted to a jury.
    
      William, S. Maddox [Philip E. Goodfleisch with him on the brief] for the appellant.
    
      Abraham B, Schleimer, for the respondents.
   Hooker, J.:

The action is to establish and foreclose a mechanic’s lien on real property. The complaint alleges substantial performance. The plaintiffs, had judgment. The contract price was $3,100. There has been allowed to the defendant $314 for work which the plaintiffs have not performed in order to complete the contract. This is more than ten per cent of the contract price. Waiver of substantial performance is neither plead in the complaint nor proved by any satisfactory evidence. Under ordinary circumstances, and those in the record are not extraordinary, a failure to perform ten per cent of the contract price will not admit of the claim of substantial performance.

The judgment should be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks and Miller, JJ., concurred.

Gaynor, J. (concurring):

While in an action to recover the amount alleged to be due on a building contract, on a complaint alleging performance of the contract, omissions or defects so trifling as to come under the maxim that the law does not regard trifles will be disregarded, and also deductions may be made from the contract price for minor omissions or defects which occurred inadvertently and in good faith and do not come under the class of trifles but are substantial, instead of judgment being given for the defendant, that is not the case before us. In the performance of such contracts such omissions or defects may so occur in the multitude of details. But, on the other hand, there are cases where the omissions or defects are so substantial and material as to require in and of themselves a conclusion as matter of law that the contract was not substantially performed, or where the same conclusion may be required by minor substantial defects which, though not large and substantial enough to show wilful and intentional omission in and of themselves, were nevertheless wilful and intentional as matter of fact (Van Orden v. MacRae, 121 App. Div. 143). As the jury were charged in the present case, it appeared on the testimony for the plaintiffs that there were 36 fire escape ladders, and also 8 iron bar cellar grates or doors, not supplied and put in, all of the value of $314 at least. It was error to leave to the jury to find that these omissions were not substantial; and the finding of fact to that effect after the verdict of the jury, which was rendered on framed issues, came back to the equity part was also erroneous. The contention made for the plaintiffs here that the defendant prevented them from doing the omitted work is without any foundation in the evidence. There were also other omissions so substantial that they must be deemed wilful and intentional.

Judgment reversed on the law and facts, and new trial granted, costs to abide the final award of costs.  