
    Morris F. Finkelstein, Respondent, v. Michael Miller, Appellant.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Building and construction contracts — Performance in general — Right to recover for variant or defective performance.
    In an action to recover for labor and materials performed and furnished under a building contract where there was evidence tending to show that plaintiff had not fully performed the contract but had left part undone and had done some of the work improperly, it was error for the court to refuse to charge, as defendant requested, that, if on the entire contract the jury found the plaintiff performed part of it and not wholly, they might allow him the reasonable value of the work performed; as well as to refuse to charge, upon like request, that, if the contract was in a very large part performed, but negligently or inefficiently performed in some ways, the value of that improper work might be charged against the contract price.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of the Bronx.
    Goldfogle, Cohn & Lind, for appellant.
    Charles Stein, for respondent.
   Per Curiam.

The action is to recover for work, labor and services alleged to have been performed and materials alleged to have been furnished by plaintiff for defendant, pursuant to a contract between the parties. The defendant claims the work was in part left unfinished and the materials unsupplied; that the value of the work done and materials furnished was $200, and that defendant has paid therefor $250, making an overpayment of $50, which amount defendant counterclaims. Defendant also claims that the work in part was so badly done that damage to the walls and floors resulted to the amount of $20, which is also counterclaimed. Defendant also claims that the work and material were of such poor quality that much had to be done over again, and the materials replaced, causing damage to the defendant to the amount of $80, which sum is also counterclaimed, making a total counterclaim of $150. Upon a sharp conflict- of evidence, the issues were presented to the jury, who found for plaintiff. Defendant appeals. At the end of the charge, to which no exception was taken, defendant’s counsel said: “ I ask the court to charge that if on the entire contract they (the jury) find the plaintiff performed part of it, and not wholly, they may allow him the reasonable value of the work performed,” and charge against that any money paid to him. The court replied: I decline to so charge, but charge that if there is a substantial performance he (plaintiff) is entitled to the whole contract priceDefendant excepted, and said: “I ask the court to charge that, if the contract be in á very large part performed, but negligently or- inefficiently performed in some ways, the value of that improper work may be charged against the contract price.” The court replied: “ I think I have covered that, and. decline to charge further in that respect.” Defendant excepted. Inasmuch as there was evidence tending to show" that plaintiff had not fully performed the contract, but had left part undone, and that some of the work was improperly 'done, this ruling of the court seems to constitute prejudicial error. It took away from the jury the right to make any deduction for work left undone or work imprbperly done, if they found that plaintiff had not wholly, but only substantially, performed the contract, which finding would be warranted by the evidence. As was said by Judge Vann in Spence v. Ham, 163 N. Y. 224, “ In order to recover at all he (plaintiff) was obliged to show either full or substantial performance (of the contract). Upon showing full performance he could recover the full contract price;" but, upon showing substantial; which is but partial, performance, he could only recover the contract price after deducting the sum required to remedy the omissions, which, when remedied, would make performance complete.”

Present: Gildersleeve, Fitzgerald and Goff, JJ.

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