
    William Walsh and ano., Resp’ts, v. Mary E. McCloskey, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 27, 1889.)
    
    Contracts—Building—Performance—Question of fact.
    Plaintiffs, as sub-contractors, received an order from the contractor art defendant, the owner, for the balance due them, the same being made-payable out of the fifth payment, to become due under the building contract, and defendant accepted the order, “ provided that no liens "are filed against said building before said payment is earned, and payable only when said payment be earned.” In an action on the acceptance there was a conflict of testimony as to whether the work was done before any lien was' filed. Held, that it was a question for the jury to say whether the work called for under the fifth payment was substantially performed, and that a motion to dismiss the complaint was properly denied.
    Appeal from a judgment entered upon the verdict of a jury at a trial term in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Patrick Ready, for plt’ffs aud resp’ts; Joseph 8. Bidgway, for def’t and app’lt.
   Osborne, J.

On or about August 26, 1886, defendant entered into a written contract with one Margaretha Bauer, for the erection of a building on Kent avenue, in the city of Brooklyn, for the sum of $7,000, payable in seven instalments, as the work progressed. Plaintiffs, as sub-contractors, agreed with said Bauer to excavate the cellar, to build the cellar walls, and to furnish lime, sand and other-materials. They finished their work about November 21, 1886, and there was due to them therefor $809.45; they were paid $200 in cash, and received for the balance an order from said Bauer on defendant for $609.45, payable out of the fifth payment for $1,000, to become due under said building contract. This order was presented to the defendant, and she accepted the same, ‘ provided that no liens are filed against said building, before said payment be earned, and payable only when said payment be earned.”

Plaintiffs brought this action on said acceptance and obtained a verdict for the amount thereof and interest, and from the judgment entered thereon, and the order denying a motion for a new trial, this appeal is taken.

The only exceptions argued on this appeal are to the refusal of the learned trial judge to dismiss complaint at the close of the plaintiffs’ case, and also at the conclusion of defendant’s case.

To entitle plaintiffs to recover, it was necessary for them to show that the said Bauer had substantially completed the work required to be done to entitle her to the fifth payment, and that no liens were filed against the building at that time. The testimony on the part of the plaintiffs was to the effect that such work was substantially done prior to the 16th day of December, 1886, at which date the first lien was filed, although it did appear that it was not completed in all its details.

On the motion to dismiss, at the close of the plaintiffs’' case, the learned trial judge held that it was a question for the jury as to whether the work called for under the fifth payment was substantially performed. There was testimony sufficient to sustain such a finding, and we think that this was clearly a question for the jury to determine as the evidence stood, and that it would have been error for the learned trial judge to have granted defendant’s motion.

The testimony adduced on the part of the defendant related mainly to the alleged non-completion of the work; both she ana the witnesses on her behalf claiming that a considerable portion of the work called for under the fifth payment was not done, although it did appear from their cross-examination, and the evidence in rebuttal, that it would cost a very small percentage of the fifth payment to complete the work required to be done thereunder.

The effect of this testimony was simply to amplify the issue between the parties, and render necessary a submission thereof to the jury,1 and the motion to dismiss at the close of the defendant’s case was properly denied.

In a charge, to which no exception was taken, the learned trial judge left it to the jury to determine whether the work was substantially done. On this issue the jury have decided in favor of the plaintiffs, and we can see no good reason for interfering with the verdict. We are therefore of the opinion that the judgment and the order denying the motion for a new trial should be affirmed.

Judgment and order denying motion for a new trial affirmed, with costs.

Yan Wyck, J., concurs.  