
    Lawrence B. Valk, Resp’t, v. Ferdinand McKeige, App’lt, et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Contract—Substantial performance.
    Where it is apparent that the contractor intended to fulfil his contract, and the defects amount to but a small portion of the contract price, a finding of substantial performance is proper, and the contractor may be. allowed to recover the contract price, less the amount of such defects.
    2. Same—Extra work.
    The finding of a referee as to the amount due for extra work upon conflicting-evidence will not be disturbed, even where some portions are based upon the evidence of the plaintiff.
    S. Mechanic’s lien—Costs.
    Upon a recovery by the plaintiff in an action to foreclose a mechanic’slien, although such recovery is less than he claimed, he is entitled to costs •where the defendant denied everything and asked a dismissal, and the-litigation was severe and protracted.
    Appeal from judgment of foreclosure and sale in an action to' foreclose a mechanic’s lien, entered upon the report of a referee.
    Defendant McKeige is the owner of the building upon which the work was done; plaintiff is the principal contractor and lienor, and the other defendants are sub-contractors-and lienors.
    
      Gratz Nathan, for app’lt; 0. N. & F. T. Payne, for resp’t, Valk; Fred. Ingraham, for resp’ts, Powers Carman and Mirchell • William B. Davenport, for resp’t Lewis.
    
   Barnard, P. J.

The plaintiff agreed to construct a house for McKeige for $7,000. This sum was payable by instalments, and all the instalments have been paid except the last one, which was $500, payable upon the final completion of -all the work. The question first presented is whether the building was substantially completed so as to entitle the plaintiff to receive this amount, less such items as were required to fully complete the contract. The referee has found the defects to be $275 and that, the contract was substantially performed. This brings the case within the rule laid down by the court of appeals in Nolan v. Whitney, 88 N. Y., 648. The defects in that case were $200 in value, and a judgment for the plaintiff allowing that sum uponthe instalment, was upheld. In this case it appears that extra work was done upon the house exceeding in amount the omissions. It is manifest' that the plaintiff intended to fulfil, and the finding that he did substantially fulfil is supported by the evidence. There is strong proof given tending to show that the work was fully done and according to .the contract in the first instance.

. There was proof that other work was done finally to complete according to specific objection of the owner.

The referee made a liberal allowance for defects under this evidence. This was allowed for extra work.

The plans were changed in some respects, and more work was ■done at the owner’s request than was called for by the contract. The referee has allowed $549.79 for this extra work. Nearly half of this is in one item for extra plumbing. That the plans as to the plumbing were changed is not disputed and that the cost was increased. The amount claimed was admitted in the case, and the concession was withdrawn. The witnesses as to the difference in cost varied. The lowest estimate was $160 and the referee'has allowed $220. The finding cannot be set aside under the rules governing appeals. Another considerable item is for extra work done in coloring the walls. The contract called for white walls, and the coloring was put on at the request of the owner’s wife and with his assent The coloring was an experiment and failed, and the plaintiff was compelled to remedy the failure. The proof shows that it cost $162.75, which was allowed by the referee. The mouldings in the dining room and parlor were changed at the owner’s request from pine to oak. The difference allowed by the referee supports the finding of fifty dollars therefor. The painting in parlor was extra, and the only question about it is whether twenty-five dollars was enough to pay or forty dollars allowed by the referee. The proof is conflicting on the subject. The extra carpenter work allowed is $71.54. The sum is made up of various small items, which rest almost, if not quite wholly, upon the testimony of the plaintiff. These items are particularly specified in the evidence, and if that is credited the finding is fully supported. There is no reason why the plaintiff’s statement in respect thereto should be discredited on appeal.

The costs were properly allowed. It is true that the plaintiff ■claimed more than he got, but there was no offer, and the litigation was severe and protracted. The rule governing actions at law in respect to costs should be applied to the case. The parties differed as to the amount due the plaintiff and through him to the other persons, who put means, labor and material in the building. The defendants denied everything and asked for a dismissal, with costs. The judgment is right in granting costs against him on the plaintiff’s recovery.

Judgment affirmed, with costs,

Dykman and Pratt, JJ., concur.  