
    Hiram Washburn, Jr., as Receiver of the Property of Peter Kalteux and John La Grange, Resp’t, v. Andrew Dettinger, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed Febuary 13, 1894.)
    
    
      Í. Contract—Building.
    The owner, by serving notice that he will complete the building upon the contract or in accordance with the provisions therefor in the contract, does not assume the responsibility for bad or defective work performed by the contractor prior to the time he ceased work upon the building.
    2. Same.
    The service of such notice does not terminate the contract.
    3. Same.
    The owner, in such case, is not liable for the collapse of the building occurring, while completing it, through the defective work of the contractor, which could not have been readily discovered by him.
    4. Same.
    To enable the contractor, or his receiver, to recover for the work done by him, he must establish that such work was done in a good and workmanlike manner.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.
    
      W. FrotMngham, for app’lt; (G. J. Buchanan, of counsel,) L. Hotaling, (F. Countryman, of counsel,) for resp’t.
   Herrick, J.

The plaintiff as receiver of the property and effects of Kalteux and LaGrange, brings this action against the defendant upon a contract made by the said Kalteux and LaGrange in November 1875, for the construction and erection by them of an ice-house for the defendant. The contract price thereof was $6,000. Kalteux and LaGrange proceeded to erect said ice-house ■and received $4,000 thereon.

On or about the 21st of February 1876, it was mutually agreed by parol, that further work upon said ice-house, should be suspended until the opening of navigation on the Hudson River in the Spring.

The referee to whom the case was referred finds that at the time of such suspension of work, there remained of work and material to be done and furnished, the following:

“About twenty-three cords of saw-dust, materials for constructing six windows; materials for inside doors, materials to replace tie beams, materials for repinniiig; the necessary labor of filling in saw-dust; completing French windows, making inside doors, scarfing and, pinning the beams, repinning building, hanging and trimming outside doors.”

That prior to the suspension of such work, the defendant had partially filled said ice-house with ice, and subsequently placed more therein, and that at the time of the falling of the house as hereinafter stated, it was more than half filled with ice. Sometime in the early part of April the defendant served notice upon Kalteux and LaGrange that they must complete said ice-house or in default thereof, that after the expiration of three days from the time of said service, he, the defendant would complete said ice-house, and deduct the amount of the expense of so doing from the amount unpaid of the contract price for the erection thereof.

That a few days afterwards, the referee finds more than three, but how many does not appear; but on the 16th day of April said ice-house fell. The referee has found that it would have cost $300 to do the work and furnish the materials left undone and unfinished, as hereinbefore specified.

He reported in favor of the plaintiff in the sum of $1700, with interest thereon, amounting in all to $3481.87 for which amount judgment was entered against the defendant.

The defendant appeals from the judgment and brings up for review many exceptions to the findings and refusals to find of the referee, both upon questions of fact and law.

After a careful review of the evidence in this case, I cannot resist coming to the conclusion that the building was improperly constructed, and that it fell in consequence of defective construction, although the referee has found “ that it does not appear what caused the ice-house to fall.”

I think the learned referee erred in refusing to find as requested by the defendant that said building was not constructed in a good and workmanlike manner, and was not at the time of the commencement of this action substantially completed.”

It appears in the evidence that the building was not properly pinned together.

That the wooden pins used were not of the kind of wood proper to be used for such purposes, being brittle and easily broken; that in a number of instances where such pins were attempted to be driven in, they broke off, and other pins were not put in their places; that one of the tie beams was not properly fastened, so that for some days before the building fell, it became drawn apart from its fastening ; and there were other minor defects as the result of which the building was not solid, but vibrated in the wind.

The only architect, a man of high standing in his profession, called as a witness, testified that the workmanship was bad. The effect of this is sought to be avoided, however, upon the ground that the defendant having served notice upon the contractors that if they did not complete said building, that he, the defendant, would, at the expiration of three days, go on and complete it himself ; and the contractors not complying with said notice, that the defendant thereafter became responsible for the building, and that it was his business to complete it, and in a good and workmanlike manner; and that if he did not do so before the building fell, the loss was his, and the only relief that he is entitled to is to deduct the amount of money that it would have been necessary to expend to complete the building in a good and workmanlike manner, according to the terms of the contract from the contractor’s price.

There is evidence tending to show that after the service of the notice one of the contractors informed the defendant that he would go on with the completion of the building as soon as he could obtain the sawdust, and subsequently notified him that he'could not procure it; but that if he, the defendant, could get it elsewhere, that he would send a force of men to put it in. If this story is true, and the preponderance of evidence seems to be that it is, although the referee has found to the contrary, then the contractors still remained in charge of finishing the construction of the building, and the defendant did not assume the responsibility of it. Furthermore, not only had the contractors omitted the doing of some things that were necessary to be done to complete their contract, but it appears, as already stated, that some of the work that they had done was defectively done, so that if it is to be assumed that the defendant, in serving notice that he would go on and complete the building himself, thereby assumed the responsibility of doing the work that under the contract remained to be done to complete it, he did not assume the responsibility for bad or defective work performed by the contractors prior to the time they ceased work upon the building.

Serving notice upon the contractor by the owner, in accordance with the provisions therefor in the contract, and even proceeding pursuant to such notice to go on and do the work, does not terminate the contract. Murphy v. Buckman, 66 N. Y., 296; Taylor v. Mayor, etc., 83 N. Y., 625; Crouch v. Gutmann, 134 N. Y., 45; 45 St. Rep., 470.

The contract being still in existence, and the contractors not being released from its terms and conditions, they are responsible for any defective work done in performing it; to hold to the contrary would be to sustain the proposition that where there is a provision in the contract providing that in case of delay to complete, that the owner may go on and do so; that the contractor, by abandoning his contract and thus compelling the owner to complete it, may escape liability for defective work done by him, and throw it upon the owner; I do not think that this proposition can be successfully maintained.

¡Neither, in a case like this, can the owner be made whole by deducting from the contract price the amount of money that it would have cost to have made a perfect job; the expense of properly securing tie beiams, of putting in good pins, of taking out defective ones and replacing them by perfect ones, is trivial compared with the injury resulting from the work having been neglected or improperly done.

The expense of doing that which was left undone and of doing over again, properly, that which was defectively done, is unimportant compared with the loss occasioned by such work not having been done, or properly done, in the first instance.

¡Neither does it appear in this case that the work that was neglected to be done, or thatwhich was defectively done, was such as could have readily been discovered by the owner; and the lapse of time between the giving of the notice that he would complete the work himself, and the falling of the building, does not appear of sufficient length to hold the owner responsible for not having discovered these defects in the building and to have remedied them in time to prevent any evil results.

To enable the contractors, or the plaintiff standing in their place, to recover for the work that was done by them, it was necessary for them to establish that such work as was done by them was done in a good and workmanlike manner, and that, I think the evidence shows, there has been a failure to establish, and for the error of the referee in refusing to so find, the judgment should be reversed, the referee discharged, and a new trial granted, with costs to abide the event.

All concur.  