
    Thomas Cahill, Respondent, v. Katherine Heuser and William G. Mulligan, Appellants.
    
      Substantial failure to perform a contract—waiver.
    
    What is a substantial failure to build a foundation and cesspools as required by a contract, considered.'
    What proof fails to establish a waiver of the right to insist that the work be done in accordance with the contract, considered. ,
    Appeal by the defendants, Katherine Heuser and another, from a judgment of the Court of Common Pleas for the city and county of Hew York in favor of the plaintiff, entered in the office of the clerk of said court on the 29th day of October,-1895, upon the decision of the court rendered after a trial at an Equity Term of said court directing the foreclosure of a mechanic’s lien. .
    
      Henry A. Forster, for the appellants.
    
      John F. Fustis and George 8. Coleman, for the respondent.
   Barrett, J.:

This is an action to foreclose a mechanic’s lien. The plaintiff Cahill made an agreement with the defendant Mulligan to build the foundations of three houses on lots belonging to the defendant Heuser. The contract price was $480. Cahill agreed that the bottom stone should be laid according to the usual building regulations. He also agreed that the cesspools should be six feet square and eight feet deep, and that they should be cemented throughout and covered with a brick arch. The evidence is all one way that the contract was not performed with regard to these two essential matters. The plaintiff admitted that the bottom stone which he laid was not in accordance with the usual building regulations. It was not of the size called for, nor was it laid as provided by law. He also conceded that the cesspools were not constructed as required by the contract. He sought to evade the consequences of these defaults by attempting to show Mulligan’s acquiescence. The evidence, however, was insufficient to establish acquiescence. As to the bottom stone, Cahill made no pretense of compliance with the precise terms of his contract. All he claimed was that the stone was such as he usually furnished, which amounted to saying that he was in the habit of disregarding the building regulations established by law.

As to the cesspools, while admitting that he had used dry mason-work instead of cement, he. at first insisted .that this was because of a paroi modification of the contract, agreed to by Mulligan. Upon further examination, however, he conceded that he was to do all that was called for in the contract. It is clear, upon all the testimony] that the contract was not varied in this particular, and that the contract price covered the waking in of ■■ the cesspools, and the cementing of the same fully throughout. He admitted that he had not built the cesspools according to the provisions of his contract. This was a failure to perform in a substantial matter. It. resulted' in a notification to Mulligan from the building department that the ■ cesspools were not watertight, as required by law. The com sequence was that Mulligan had. to spend thirty dollars in cementing the bottoms of the cesspools. Even then the building department refused to pass them unless they were rebuilt^ which will-cause additional expense of some ninety dollars. Cahill positively refused to do anything- about the cesspools, and declared that he -would not do another bit of work Until he got his money.

It is impossible upon the facts to sustain the decision that there Was a substantial compliance with the contract. It was, on the contrary, flagrantly violated. Mor can we uphold the judgment upon the claim of waiver. The testimony upon that head was introduced "Without objection. Consequently the point that the complaint ' alleged performance and not a waiver of strict performance will hardly avail. Conceding, however, that this testimony was properly considered, it entirely failed to establish a waiver. The claim of waiver rests mainly upon two payments which Mulligan made upon"account. The first payment was a favor. The “pointing ” was not then done, and clearly Cahill was not entitled to the contract price as upon complete performance. Mulligan gave him $200 upon the representation that one of his (Cahill’s) men was in pressing need of money — Cahill stating that this workman'had not a thing to eat in the house. As to the second payment, the testimony is overwhelming that-it was made upon Cahill’s representations that the work was all done, and upon his giving a bond jhat the walls would last.- Mulligan never accepted the work, or promised to pay therefor, with knowledge of the facts. The burden ,was upon Cahill of showing performance, or an actual waiver with full knowledge of the facts. (People's Bank v. Mitchell, 73 N. Y. 414), and he failed to establish either.

It follows that the judgment should be reversed and a new trial . ordered, with costs to the appellants- to abide the event.

Van Brunt, P. J., Bumsey,. O’Brien, and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellants to abide event.  