
    John P. Levins, Respondent, v. Moses Phillips, Isaac A. Phillips, Max Phillips, David D. Phillips and Abraham S. Phillips, Appellants.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Contracts — consideration — when recovery cannot he had — quantum meruit.
    Where a party by contract creates a duty or charge upon himself he is bound to make good notwithstanding any question of delay by inevitable necessity because he might have provided against it by contract.
    Plaintiff agreed for a consideration to do the plumbing work on a building of defendants in course of erection and when he had done about one-fifth of the work his men struck because the owners of the building gave a contract for a part of the construction work to union steamfitters instead of union plumbers. Held, that plaintiff could not recover from the owners for the work already done on the theory of a quantum meruit.
    
    
      Appeal by the defendants from a judgment entered in the City Court of the city of New York, upon a verdict in favor of the plaintiff for the sum of $1,414.76, and from an order denying the defendants’ motion to set aside the verdict and for a new trial.
    Hirsh & Newman (Benjamin Reass, Emanuel Newman, Hugo Hirsh, of counsel), for appellants.
    Bogart & Bogart (John Bogart and Isidore Week-stein, of counsel), for respondent.
   Cohalan, J.

Plaintiff sued for work, labor and services and materials furnished. The action was brought upon the theory of a quantum meruit. It appears that the parties on June 30,1912, made an agreement whereby, for the sum of $4,975, the plaintiff was to do the plumbing work on a factory in process of erection by the defendants.

On August 15, 1912, a strike was declared by the Journeymen Plumbers’ Association against the defendants on the ground that the defendants had given out the contract for standpipes and fire lines to the H. Q. Vogel Company, a corporation employing steamfitters. The Plumbers’ Union claimed that the awarding of this contract to steamfitters instead of to plumbers was an interference with their rights and the rights and rules of the union. Plaintiff, therefore, claimed that it was prevented from proceeding with the work.

In brief, the strike was called because union steamfitters were doing the work instead of union plumbers. The defendants endeavored to persuade the plaintiff to proceed with his contract, and eventually was compelled to complete the same to his damage in the sum of $750. The sole question in the case was whether or not the plaintiff could avoid his contract through the interference of a labor union. The court submitted the case to the jury on the theory that the defendant gave the contract to the Vogel 'Company with the knowledge that trouble would occur between the labor unions and the contractors; that this operated to release the plaintiff from the performance of the contract, and entitled him to recover on a quantum meruit for the work actually done. We are of the opinion that this was error. The plaintiff was bound to complete his work whether or not he used union men. The defendants had an undoubted right to give the contract to the Vogel Company, as that company had a legal right to accept it. The defendants surrendered no right to manage their affairs by entering into the contract with the plaintiff. They were at liberty to let out work with other contractors for a different class of work, which in no way conflicted with the duty and obligation assumed by the plaintiff. The rule of law in this state is, that where a party by his own contract creates a duty or charge upon himself he is bound to make it good, notwithstanding any question of delay by inevitable necessity, because he might have provided against it by contract. Cameron-Hawn R. Co. v. City of Albany, 207 N. Y. 377; Harmony v. Bingham, 12 id. 99.

The plaintiff had. not even substantially performed his contract. He had done about one-fifth of the work. If he had been wrongfully discharged from his performance of the contract, and had been prevented by the defendants from completing it, the plaintiff had an undoubted right to ignore it and recover the value of the work done and the material furnished.

Upon the facts in this case he could not ignore his contract, and sue to recover on a quantum meruit unless he proved a substantial performance of it. Gersmann v. Walpole, 79 Misc. Rep. 50; Tinley v. Van Wert, 119 App. Div. 738.

The evidence does not show that there was an issue of fact in the case for the jury to consider.

Lehman and Hendrick, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant to abide event.  