
    WEEKS v. LITTLE.
    
      N. Y. Court of Appeals ;
    
    
      October, 1882.
    [Reversing 47 Super. Ct. 1.]
    Action to Foreclose Mechanic’s Lien fob Services and Materials.—Contract for Building.—Counter-claim for Delay.— Non-performance Excused by Employer’s Conduct.
    The rule is well settled that where the work to be performed by the builder cannot be performed until other work provided to be done by the owner or his employees is finished, the failure of the latter to complete their work in season to enable the builder to end his within the time limited by the contract, is a sufficient excuse for his delay beyond the agreed period of completion.
    The fact that some work was delayed by the builder which was not affected by the employer’s delay, does not alter the result, unless it be proved that there would have been delay in such independent work if the builder had not been hindered.
    The contractor can gain nothing by haste and pressure in one direction so long as entire completion be delayed by his employers ; and the court cannot divide and apportion the fault.
    Appeal from a judgment.
    De Witt C. Weeks and Francis Marion Weeks brought this action against William McCarty Little and his wife and others to foreclose a mechanic’s lien on premises owned by the defendants Little and wife. The complaint alleged a building contract made between Little and wife as owners, and the plaintiffs, which bound the plaintiffs on or before a day named well and sufficiently to erect and finish a new building, and the alteration and renovation of buildings then' standing agreeably to the specifications, &c., and to the satisfaction of the architect, whose certificate was required. The contract contained a clause imposing liquidated damages in the amount of $20 per day “for each and every day after the said first day of September, 1877, that the work to be done and performed by them under this contract shall remain undone or unfinished. ”
    The owners’ answer alleged that the building was not finished at the time agreed, and that a certificate of the architect alleged and relied on by the plaintiffs was not given until December 27, 1877, and that the building had not even yet been finished pursuant to contract.
    It also set up a counter-claim for the damages for delay; and a second counter-claim alleging special damages in loss of rentals, and in controversies and losses in settling with tenants whom defendants had accepted in reliance on the time fixed for the completion of the building.
    The referee held the certificate relied on to be sufficient within the authorities, although it was qualified by allowing a deduction to be withholden from the payment, for some work necessarily delayed ; but sustained the first counter-claim. The substance of his findings so far as material appear in the opinion.
    The Superior Court, at general term, affirmed, the judgment without discussing in their opinion the questions of law. [Reported in 47 Super. Ct. (J. & S.) 1.]
    The plaintiff appealed to the court of appeals from so much of the judgment as allowed the counterclaim.
    
      R. W. Deforest, for plaintiffs, appellants.
    
      Jackson & Martine, for defendant, respondent.
   Finch, J.

We do not think it necessary to discuss

and determine the effect upon the claim for liquidated damages of the delay produced by the modification of the original plan, which added new walls and two additional stories. Assuming for present purposes, what we do not decide, that the time of performance was extended only to October 1, and that such extension was intended and understood to cover the changes of plan and increased amount of work, and assuming also that the original contract, with its damages for delay, applied to and controlled the modified and increased • work, we are yet of the opinion that the plaintiff’s non-performance was occasioned and excused by the act of the defendant, and the counter-claim was therefore improperly allowed.

The rule is well settled that where the work to be performed by the builder cannot be performed until other work provided to be done by the owner or his employees is finished, the failure of the latter to complete their work in season to enable the builder to end his within the time limited by the contract, is a sufficient excuse for his delay beyond the agreed period of completion (Stewart v. Keteltas, 36 N. Y. 388). In the case at bar the referee has found and certifies as facts: that the defendants agreed to furnish and complete certain parts of the building. to be erected; that among these was all the marble work, including the mantels and treads of stairs, the elevator and kitchen lift, the steam heating apparatus, which was not determined upon until the brown coat of mortar was already on, and the ranges ; that the steam heating work was not completed till after November, and the marble work, elevator and lifts were not done until December 24; that “the plaintiffs could not complete many parts of their contract work until after these parts of the building were furnished by defendant and put in place, and were delayed and prevented from completing said parts of their contract work by reason of defendants’ failure to furnish them;” and that plaintiffs did not complete some part of their work which was not dependent upon defendants’ action until December 24. Irrespective of the last fact found, the case is brought fully within the rule above stated. The finding is definite and clear that complete performance within the contract time was rendered impossible by the act of the defendant, and the very just result follows that the defendant cannot recover damages for a delay which she herself occasioned.

The referee found as a conclusion of law the exact contrary, for upon request, be refused to find “ that the failure of defendant to furnish those parts of the work undertaken by her, upon the completion of which the completion of plaintiff’s work depended, affords a legal excuse for non-performance of plaintiff’s work before December 24. ” Upon what ground this refusal rested we do not know. The opinion of the referee and of the general term, are silent on the subject. The learned counsel for the respondent, in the brief furnished on the argument seems to touch it very lightly and guardedly. He says that the fact of work being done after October 1 by the defendant is “unimportant.” That is true ; but it becomes very important when supplemented by the further fact that this very work thus continuing rendered impossible plaintiff’s performance within the contract time. The learned counsel adds that “plaintiffs were not prevented from finishing by reason of the defendant. ” The referee finds that they were. It is true he also finds that some work was delayed which was not affected by the delay of the defendant. We do not see how that fact alters the result. To effect that would require us to assume what is not proved; and we cannot know that there would have been delay in the independent work if the dependent work had not been hindered. The contractor could gain nothing by haste and pressure in one direction, so long as entire completion was delayed by his employers. We cannot divide and apportion the fault. It is enough that damages were payable upon a failure of entire completion, and that was rendered impossible by the defendant’s act, and her executor cannot recover for a failure which she made inevitable. But for that we cannot say that there would have been any delay beyond the contract time.

The judgment should be reversed so far as it allows, defendant’s counter-claim for liquidated damages and interest, and a new trial is granted as to such counterclaim, costs to abide the event.

All the judges concurred.  