
    Catherine Healy, Resp’t, v. Washington Bulkley, App’lt.
    
      (City Court of Brooklyn, General Term
    
    
      Filed June 23, 1890.)
    
    1. Contract — Action by owner on building for breach — Evidence.
    In an action by the owner of a building to recover damages for breach, of a building contract, it is proper to allow the plaintiff to show the cost of removal of defective material and of replacing the same in accordance with the contract.
    2. Same — Measure oe damage.
    Where the complaint in such an action claims for material not furnished and for delay in performance of the work, it is not error to refuse to charge that the measure of damage is the difference between the value of the work as done and as required by the contract.
    Appeal from judgment in favor of plaintiff.
    Action to recover damages for the improper and negligent construction of a building.
    The complaint alleges that defendant agreed to complete the building by the 1st day of October, 1888; that he failed to complete the same at that time, or within a reasonable time thereafter. The complaint further alleges that on or about January 8, 1889, the defendant made another written agreement, which is annexed to and forms part of the complaint; and that he failed also to complete the last named agreement according to its terms, and performed the work and furnished the material in a manner unskillful and unworkmanlike, employed inferior and defective materials and delayed the construction of the premises so that the plaintiff lost the value of the use thereof.
    The answer admits the making of the contracts, except that defendant denies the covenant to complete by October 1, 1888; denies that he proceeded in a negligent, dilatory and unskillful manner; alleges that plaintiff gave him a mortgage as security for payments to become due under the contract, and by fraud, trick and device procured him to satisfy the same. He further alleges that after the agreement of January 8, 1889, he proceeded and completed the building as soon as possible; that the last installment of $723.50, and also extra work of the value of thirty-two dollars remained unpaid, and that he has filed a lien to recover the same. The defendant further alleges that he was hindered by plaintiff herself, and by her failing to have certain necessary work performed outside of his contract, which rendered it impossible for him to complete his agreement.
    On the trial plaintiff was allowed to show what it would cost to take out the defective doors and hardware and put in new to conform to the plans and specifications.
    The court was requested to charge that the measure of damage was the difference between the value of the work as done and as required by the contract, but refused to charge that further than he had already charged.
    
      Thomas D. Ramhaut and L. A. Gould, for resp’t; Samuel P. Potter (James Troy, of .counsel), for app’lt.
   Per Curiam.

The plaintiff brought this action to recover damages for breach of contract for the building of a house, and on the trial it was claimed that the defendant delayed performance and that there were defects in the work. The jury rendered a verdict for the plaintiff for the sum of $450, and from the judgment entered thereon this appeal is taken.

We are only called upon to review certain exceptions, and after a careful examination of the same we think that there was no erroneous ruling which resulted injuriously to the rights of the •defendant. It was proper to allow the plaintiff to show the cost of removal of defective material and of replacing the same in accordance with the contract. Such cost did not necessarily constitute the measure of damage, but the testimony was properly admitted, to be weighed by the jury in arriving at a conclusion. Kidd v. McCormick, 83 N. Y., 391. “ The request to charge as to the rule of damages was properly refused as too general. It was the correct rule as to defective workmanship or poor material, but in this case there was also a claim for material not furnished and for delay in the performance of the work.

Judgment and order denying new trial affirmed, with costs.

Clement, Ch. J., and Osborne, J., concur.  