
    Edward Rowe, Respondent, v. Isabel H. Gerry, Appellant, Impleaded with The East Norwalk Lumber Company and Others, Respondents, and Others, Defendants.
    (No. 1.)
    Second Department,
    November, 1905.
    New trial on amended pleading—effect of submission of-case on evi-" . dence at former trial.
    Where, after the amendment of a complaint allowing proof of substantial instead of complete performance of a building.contract-, the defendant has consented to submit the case upon the evidence erroneously admitted under the former pleading without objections or exceptions to such evidence under the amended pleading, and such evidence shows substantial performance, the defendant cannot question's, judgment for the plaintiff.
    Opinion on former appeal construed.
    . Appeal by the defendant, Isabel H. Gerry, -from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the "county of Westchester on the 26th day of November, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Henry G. K. Heath, for the appellant.
    
      J. Mortimer Bell, for the defendants, respondents.
   Woodward, J.:

The judgment from which this appeal is taken is based upon the same facts which appeared in evidence upon a former trial, the pleadings having been amended to permit the admission of evidence to show that the plaintiff had substantially performed his contract to construct a dwelling house for the defendant Gerry. Upon the former trial the learned referee, upon a complaint which alleged full performance of the contract, permitted the plaintiff to show that there was merely a substantial performance, with excuses for failure ■ to perform, over the' objection and exceptions of the defendant Gerry, and the judgment. was reversed because of this manifest error. Upon the second trial the case was submitted upon the evidence in the first trial, the complaint having been amended so as to make competent the evidence in reference to substantial performance, and the learned court below has' decided that the. plaintiff and the sub-contractors, defendants respondents, are entitled to judgment.

It is now urged that this court, by reason of some matters suggested in its opinion on the former appeal (Rowe v. Gerry, 86 App. Div. 349), has conclusively established the law of this case, and that it was there held that the plaintiff had abandoned his contract. We are unable to agree with this contention; the question upon which the appeal was decided was a technical one and related entirely to the error in receiving evidence over the objection and exception of the defendant Gerry which was clearly inconsistent with the cause of action asserted. The case as it was pleaded. on the former trial set up the alleged performance of the contract; that performance required not only the doing of all of the work contemplated by the contract, but it was made a condition prece-. dent that the plaintiff should secure the certificate of the architect named in the contract before he should be entitled to his pay, and this certificate was not produced. It 'was in reference to this condition of affairs • that we said, in discussing the case, that “ it appeared from the evidence that the allegations of the defendant Gerry were true; that the building had not been completed and that- the certificate of the architect had not been asked for or granted, and that Van tine had abandoned the work before its completion.” That is, he had quit the work before it was completed in such a manner as to secure the architect’s certificate, not that he had abandoned the contract and all rights under it, if he had in fact substantially performed the same, for it was said: “ While it is probably true that the work which was lacking was not specially important, and were the pleading for a substantial compliance the Court might have been justified in permitting the plaintiff to recover the'contract price, less the cost of completing the work under the specifications of the contract (Spence v. Ham,, 163 N. Y. 220, 225, 226), the difficulty presented on this appeal is that the learned referee permitted the plaintiff, under a complaint which alleged full performance, to give 'evidence of non-performance and excuses for such non-performance, .and this over the specific objection of the defendant that the "evidence did not tend to support the allegations of. the complaint,” etc. This was the extent of our decision, and it was fully recognized that, under the evidence as tile referee had considered it, there was room for holding that the plaintiff had substantially performed his contract and that he was entitled to his pay, léss the small amount, which would be necessarily expended in completing some minor details. •

There is no dispute that the amount allowed for the completion oi the work, sixty-four dollars and seventy-five cents, is adequate, this consisting of a little painting and some trivial matters, and we are of opinion that the, suggestion that it was the duty of the plaintiff to allege and prove the actual cost of completing the work under the facts disclosed by the evidence, in this case, is without merit. The defendant appellant, if she had desired to raise this question, should have called it specially to the attention of the court,-and not permit the evidence to stand without contradiction or question, and then attempt to urge objections upon appeal. There was, as we believe, a case of substantial performance under the authority cited above; this was clearly indicated in our former discussion of this case, and the appellant having consented to submit the case upon the evidence erroneously admitted under the former pleadings, is hardly in.a position to question the judgment. She is in no better position than.one who goes to the'jury in the absence of a motion to dismiss the complaint;. there is a concession that there are’ questions of fact to be determined, and in the case now before us the court has determined, upon the evidence which is unquestioned, and as to which there are no objections or exceptions under the pleadings as they now stand, that the plaintiff substantially performed his contract, and that he is entitled to the contract' price, less the amount necessary to complete the work.

Upon a consideration of the whole case we are persuaded that the result reached is in harmony with substantial justice, and that-' the judgment should be affirmed.

The judgment appealed from should be affirmed, with costs.

Hirschberg, P. J., Hooker, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.  