
    Joseph Gurski, Respondent, v. Claus Doscher, Appellant.
    Second Department,
    April 27, 1906.
    Contract—time of payment on building contract when no time set— evidence—objections insufficient to raise question of lack of consideration for new promise to pay by installments.
    When- the negotiations of the parties to a building contract establish no fixed time for payment, it is, as a matter of law, the time performance is completed. An objection to evidence, showing that, after the execution of- the original contract fixing no time for payment, the defendant agreed to pay by installments, is not well taken when not specifically based on the lack of consideration for the new contract. Lack of consideration cannot be raised upon an objection to the evidence on the ground that it was “incompetent, immaterial and irrelevant and as tending to vary a contract already executed between the parties.”
    Appeal by the defendant, Olaus Doscher, from a judgment of the County Court of Rings county in favor of the plaintiff, entered in the office of the clerk of the county of Rings on the 26th day of Juno, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff submitted the following writing signed by him to the defendant, who was receiving estimates to build twenty-two houses on Wyona street, Brooklyn : “ Mr. Claus Doscher: I hereby agree to do all the brick work for twenty-two houses, two story and cellar, put in' concrete for the foundation, for the sum of $4,600.” The next day the defendant" told him to go ahead with the work. Hothing else occurred between' them and the plaintiff went to work on the houses. After working a week the plaintiff asked ' the defendant on Saturday for money and the defendant gave him $300. He testifies that he said to the defendant that that Was not enough to pay his men for the week, and that they had to make some arrangement that he‘could get more "money, arid "that the defendant answered, “ All right, make an agreement out and fetch it up to me.” Five days later he handed to the defendant a paper, signed by himself, which set out seven payments at seven stages'of the work, viz,, when the brick work is ready-for the first tier of beams, $40 for each house; when it is ready for the second, $40, and so on. He testifies that the defendant said, “ That is right, that is the way it got to be done,” and kept the paper. On the Saturday- following the plaintiff went to the defendant 'for money and the defendant offered him $300. lie declined it. The -defendant denied that he had.agreed to pay by the-stages, arid said if the plaintiff did not take the $300 he would give him nothing, until the contract was completed. The plaintiff testifies .that he had 19 houses up'to the first tier and three up to the second, which would make $640 due on the installment basis, less the. $300 paid. As-the defendant would not pay .this the plaintiff quit.. This action is to recover the value of the work done and material furnished.
    
      Henry F. Cochrane, for the appellant.
    
      Bruce R. Duncan, for the respondent.
   Gaynor, J. :

Ho time of payment having been fixed by the original contract the law fixed the time, viz., when the contract was Completed; The defendant’s counsel objected to the admission of the evidence of the change of the contract by providing for payments at stages of the work on the ground thai it was “ incompetent, immaterial and irrelevant, and as tending to vary a contract already executed between the parties.” This general objection was of Course hot good ; it did not raise the point that there was no consideration for the new agreement ás is now urged: The difficulty with that is that there was no such objection taken on the trial. Thp court left it to thé jury to say whether the new contract was made, the defendant. having denied- it on the witness stand. This was excepted' to, but no question of invalidity for lack of consideration was raised. The exception was in terms to the' charge (paraphrased by .counsel). that a binding contract could be subsequently modified between the parties.” The request to charge has the same omission; indeed, it only asked the court to charge that neither party ” could change a contract. The brief for the appellant states that the foregoing is the only question the appellant submits.

The judgment and order should be. affirmed.

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Judgment and order of the County Court of Kings county affirmed, with costs.  