
    Christopher J. Kenny and Richard E. Heningham, Respondents, v. Hugh V. Monahan, Appellant.
    
      Contract—delay in its execution, when excused—when not a ground of defense to payment— liability of a contractor, covenanting “ to protect his works,” for damage by water to the owner’s stock on the lower floors of the building.
    
    In an action brought by contractors to foreclose a mechanic’s lien, a counterclaim interposed by the owner for damages alleged to have resulted to him from the failure of the contractors to complete the building within the time specified by the contract, cannot be sustained where changes in the work, which caused the delay in the completion of the contract, were made at the suggestion of the architect with the approval of the owner, and the conduct of the parties shows that time was not, in their contemplation, of the essence of the contract.
    In such an action, where the owner does not insist upon his strict legal right to put an end to the contract for a failure to complete it within the prescribed time, and permits the contractors to continue the work, he will be estopped from interposing as a defense, though not as a counterclaim, thereto the contractors’ delay.
    Where a building contract provides that “ the contractor must at all times protect his works, and will be held responsible for any damages thereto until the completion and acceptance of the work,” and it appears that it was contemplated by the parties that the owner should continue his business upon the lower floors of the building in question during the progress of the work, a very high degree of care is required of the contractor to insure the safety of the owner’s stock against damage from water coming in through the roof.
    Appeal by the defendant, Hugh Y. Monahan, 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 24th day of August, 1899, upon the decision of the court, rendered after a trial at the Kings County Special Term, foreclosing a mechanic’s lien for the sum of $4,327.42.
    
      Edwa/rd M. Grout, for the appellant.
    
      D. F. Manning, for the respondents.
   Woodward, J.:

The careful and intelligent discussion of this case presented in the opinion of the court below makes it unnecessary to enter into any elaborate consideration, of the matters involved. Counsel for the appellant urges with so much of earnestness that the trial court has misapplied the law, as laid down by the court in Dunn v. Steubing (120 N. Y. 232), that we have felt constrained to consider that view of the question. The contract under which the plaintiffs in this action performed the services for which they now seek to recover provided that the work should be completed within one month. The learned trial court decided that “the defendant has failed to sustain his counterclaim for damages for delay in the completion of the building beyond the time specified in the contract, for the reason that time was not of the essence of this contract in the contemplation of the parties, and the defendant has estopped himself from enforcing this provision of the contract by his own conduct.” In an accompanying opinion the court suggests, upon the authority of Dunn v. Steubing (supra), that “upon the failure of the plaintiff to perform the contract by the date fixed, the defendant might have insisted upon his strict legal rights and then put an end to the contract, but this he did not do, but permitted the plaintiffs to continue the work, and for this reason he cannot now insist upon the delay as a defense to an action brought to recover the price of the contract.” This view of the law seems to be in harmony with the authority cited ; that is, that the failure of the plaintiffs to perform the contract within the time specified, if acquiesced in by the defendant, who has received the benefit of the labor performed and the materials furnished, cannot be set up as a defense to an action to recover for such services and materials. This does not go to the extent of holding that damages actually sustained by the defendant by reason of the failure of the plaintiffs to perform the contract within the time specified, may not be recovered, but that the mere fact of a failure to perform is not a defense to the action. The difficulty with the position assumed by the appellant is that there was no evidence in support of the claim for damages under this head, except that the plaintiffs had failed to perform the work in the time agreed upon; and in the absence of evidence showing damages the defendant has failed to establish a counterclaim.

The record shows that there were material modifications and changes made at the suggestion of the architect, with the approval of the defendant, that these required additional time, and the facts justified the decision of the court below that time was not of the-essence of the contract in the contemplation of the parties, and that the defendant had estopped himself from insisting upon the time limit of the contract by his own conduct. We fail to find in the-case anything to indicate that the trial court has misapplied the law. So far as our attention is drawn to the matter no evidence was. offered in support of the claim for damages, aside from the fact that the contract was not performed on time, and no right of the appeb lant, therefore, could be involved, even if it be conceded that the court below was led into the error of supposing that the defendant could not recover actual damages growing out of the failure to perform a duty which plaintiffs owed to the defendant under the contract. We are of opinion that the authority cited fully sustains the decision of the court below, in so far as it affects the rights of the appellant at least, and beyond this there is no need to inquire.

The damages for injuries to goods, due to the failure of the plaintiffs to exercise that degree of care demanded of them under the circumstances, is fully treated by the court below, and the conclusion reached is supported by the evidence.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs. 
      
       The following is the opinion of the court helow :
      Smith, J.:
      The plaintiffs have sustained, by a preponderance of evidence, their claim that they completed their work in accordance with the contract and in a substantial and workmanlike manner, and that their claim for extra work should he allowed. The contract provided that the work should he done in a good, workmanlike and substantial manner, to the satisfaction and under the direction of the architect, to be testified by a certificate under his hand. The architect furnished the required certificate and testified himself upon the trial that the performance of the contract was in accordance with the plans and specifications thereof and in a substantial and workmanlike manner. The variation in these specifications of which the defendant most seriously complains is the substitution of angle irons for bridle irons. I find that such substitution was done under the direction.of the architect, and he testified that the defendant agreed to the change. Whether he did or not, I do not consider that material, because upon the evidence I find that the defendant was not damaged by the substitution, for, all things considered, angle irons make just as good a job as bridle irons.
      The defendant interposes two substantial counterclaims—first, for damages for delay in the completion of the building beyond the time specified in the contract. The contract provided that the work should he completed by September twenty-fifth. The work was not actually completed until December twenty-fourth. From a consideration of the conduct of the parties during the whole period of the work, my judgment is that time was not considered of the essence of the contract. I think the time named for the completion of the-work is a date to he aimed at, and that neither party contemplated that it was more than possible that the work should he finished at that time. But, if I am mistaken in this conclusion, I think the evidence warrants the finding that the defendant estopped himself from enforcing this provision of the contract by his conduct. As was said in the case of Dunn v. .Steubing (120 N. Y. 232). upon the failure of the plaintiff to perform the contract by the date fixed, the defendant might have insisted upon his strict legal rights, and then put an end to the contract, hut this he did not do, hut permitted the plaintiffs to continue the work, and for this reason he cannot now insist upon the delay as a defense to an action brought to recover the price of the contract. There was a change in the plans and specifications by substituting different iron girders than those originally contemplated, made with the consent of the defendant, which entailed considerable delay. The defendant did not notify the plaintiffs that he should claim damage by reason of the delay, as he should have done, until a brief time before the work was finally completed. I do not think that the defendant at that time had in mind to make any claim against the plaintiffs for damages by reason of the delay, and that his whole conduct justifies a finding upon my part that he waived the strict performance of this part of the contract.
      
        The second substantial counterclaim argued by the defendant is for damages occasioned by the water coming in through the roof, and particularly on the night of October 12, 1898, to the injury of the stock of goods upon the floors below. The contract provided that “the contractor must at all times protect his works, and will be held responsible for any damages thereto until the completion and acceptance of the work.” It was contemplated by both parties that the defendant should actually conduct his business upon the lower floors during the progress of the work. The safety of the stock was in the hands of the plaintiffs, and in my judgment a very high degree of care should have been exercised b)r the plaintiffs to insure the safety of the defendant’s property. I do not think that the care exercised by the plaintiffs uTas quite up tc the standard, and that whatever damage was sustained by the defendant by reason of water coming in through the roof on October twelfth should be charged against the plaintiffs. The amount of this damage was the subject of considerable litigation upon the trial of this action. A short time after the damage was done the parties agreed to submit to three arbitrators the question of the amount of damages. The plaintiffs selected one arbitrator, the defendant another, and the two thus chosen selected a third. They met and examined the goods claimed to be damaged by the defendant, made an appraisal and agreed that the amount of damage sustained by the defendant was §278.65. The defendant repudiated the award of the arbitrators. The plaintiffs now claim that the award of the arbitrators is binding upon the defendant. The defendant claims that the arbitration is void. From my view of the case, it is unnecessary for me to determine whether the award is binding upon the defendant or not. I am satisfied that the arbitrators are fair-minded and competent, men and understood their business thoroughly. They made a careful and thorough examination of all the goods claimed to be damaged, and I do not think I should be justified in rejecting their estimate. I believe that their determination represents the most correct conclusion that can be arrived at in determining this dispute between the parties, and find, as did the arbitrators, that the sum awarded by them is the amount that should be allowed to the defendant for his damage. Some items of damage claimed by the defendant are not passed upon by the arbitrators. They are as follows: The expense of removing the water from the floor, seventy-five dollars; the expense of repapering the walls and ceilings, twenty-seven dollars and fifty cents; the expense of repairing the wood ceilings, twenty-five dollars, and the expense of whitewashing the walls and piers of the cellar, five dollars. These amounts I also allow to the defendant, as claimed by him.
      My conclusion is that the plaintiffs are entitled to judgment against the defendant for the amount claimed by them as the balance due on the contract and for extra work claimed, less the amount of the counterclaims of the defendant which 1 find have been established at the sum of §411.15. The plaintiffs are also entitled to the costs of the action, but I award no extra allowance.
     