
    Nason Manuf’g Co. v. Stephens.
    
      (Supreme Court, General Term, Second Department.
    
    
      December 13, 1888.)
    
    •Contracts—Building Contracts—Extra Work—Request of Owner.
    Where defendant, in a contract by plaintiff to build for him an extension to a water tower, agreed to maintain the water at any height desired for the convenience of the workmen, but failed to do so, whereby it became necessary for plaintiff either to erect scaffolding or to abandon the work, plaintiff might erect the scaffolding and recover the expense from defendant as for extra work, even against defend ant’s will.
    Appeal from judgment on report of referee.
    Action by the Nason Manufacturing Company against Benjamin F. Stephens on a contract by plaintiff to build an extension to the stand-pipe or water-tower of the Coney Island Water-Works. The contract provided that the water-level during the progress of the work should be maintained by defendant at any height plaintiff might desire for the convenience of the workmen. There was evidence that it was designed to work from a raft floating on the water in the old tower, and that by reason of the failure of defendant to maintain the water at the required level, scaffolding became necessary. For the •expense of this scaffolding plaintiff sought to recover. Judgment for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    O. L. Stewart, for appellant. Theodore F. Miller, for respondent.
   Pratt, J.

The findings of fact upon which the judgment depends were ¡found upon conflicting evidence, and we are not able to say that they are not supported by the testimony. The referee can, in such cases, better than can: the appellate court, determine what weight to give to the testimony of the differing witnesses. We do not find any error of law requiring a new trial. The argument of appellant that defendant cannot be held to pay for extra, work because he did not request it to be done, and did not promise to pay for it, cannot be sustained. The contract required the water to be kept at a certain height for the facility of construction. Defendant failed to keep it there, thereby making it necessary to abandon the work, or to erect expensive scaffolds. When defendant failed to keep the water where he agreed, plaintiff might have refused to continue the work, and brought his action for the-breach of contract. But he was not obliged to take that course. He might elect to erect the scaffolds, and charge the expense thereof as extra work rendered necessary by the act of the other party to the contract. This he might, do even against the will of the other party. To hold otherwise would deprive-a party not in fault of his right to perform his contract, and reap the resulting profits. Judgment affirmed, with costs. All concur.  