
    John Schlachter, Resp’t, v. Robert E. Hopkins, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    Contbact—Building—Delay.
    The rental value for the period of delay in completing a house, if caused by the neglect of the contractor, may be deducted from the contract price.
    Appeal from a judgment in favor of plaintiff.
    
      E. T. Lovatt, for app’lt; James M. Hunt, for resp’t.
   Pratt, J.

This is an action instituted to foreclose a merchant’s lien alleged to have been created by performance of a contract entered into by the plaintiff with defendant Hopkins. The contract was executed on September 12, 1891, and the work called for by its terms was to be completed on April 1, 1892, and it is admitted that it was not finished until July 10, 1892. That the plaintiff delayed in commencing work under the contract is undisputed. The defendant Hopkins, as late as November 6, 1891, complained to the plaintiff and architect of the delay in its prosecution. At that date they were only laying the foundation. That the architect appreciated the justice of such complaint is manifest,from the fact that he testifies that he repeatedly urged plaintiff to hurry the work. Hopkins continued to complain of the tardiness in the prosecution of the work, and frequently urged the plaintiff to be more expeditious with the work. About January 11,1892, Hopkins insisted that the chimney, arches, and fireplaces were illy and unskillfully constructed, and, at his request, the matter was referred to another who, after a delay of two weeks, decided that, after some slight alterations, the work on chimneys, etc., would do. Such alterations were made during such two weeks. For some reason, not apparent from the testimony, all other'work on the premises was stopped. Would it not have been fairer and more reasonable to have continued during such delay on other portions of the building which required it? Hopkins directed.that some stairs other than those provided by the contract should be placed in the building, and agreed to pay the costs of constructing the same in addition to the sum to be paid under the contract; and the amount, $215, charged for same, was allowed by him. The testimony does not disclose when the work on said stairs was commenced,- or how long a time it consumed to supply them, and perform the extra labor caused by their construction and erection. Upon this point it is somewhat conflicting. From a careful perusal of the evidence, my best judgment is that an allowance of three weeks for such delay would be equitable. The referee did not err in allowing the defendant Hopkins the sum of $495.65, for moneys paid by him for painting required by the contract, and such sum should be deducted from the contract price.

The testimony throughout shows to my mind that the plaintiff did not prosecute the work called for by the contract with diligence and dispatch; that whatever delays might inferentially be charged to Hopkins were more than counterbalanced by the apparent delays and lack of energy and attention of the plaintiff in performing such contract. It is clearly shown that Hopkins, with the exception of the delays hereinbefore noted, did everything in his power to facilitate and hasten the work. The promptness with which he paid the sums alleged to be due under the contract, and the fact of his pecuniary advances to plaintiff to relieve him financially, and to provide him with funds to prosecute the work, his waiver of the performance of several items required by their agreement, as also his celerity in paying the charges for extra plumbing and mason work, all abundantly prove this. On the other hand, the testimony clearly shows the plaintiff’s lack of interest in the work; that he farmed out every part of the general construction to various subcontractors, over whom Hopkins had no authority, and with whom he could not advise; that, upon the occasion of such complaint to the plaintiff, he threw the blame or cause of the same upon one of these subcontractors; that said contract was so sublet without'the written consent of Hopkins, as the contract obligated him to do; his almost entire failure to give the work his personal supervision, as evidenced by his rare and infrequent visits to the premises during- the progress of the work ; that, although behind time on this contract, he transferred mechanics from the Hopkins- building to the Eamsay house, for whose construction he also had an agreement. I am of the opinion that, if the plaintiff had used reasonable diligence and dispatch, the building would have been ready for occupancy, notwithstanding the delays attributed to defendant Hopkins, on May 1, 1892. IE it had been completed at that date, the uncontradicted testimony shows that the premises could have been leased to a responsible tenant for $1,100 per year. I am of the opinion that the defendant Hopkins is entitled to be paid by the plaintiff the pro rata portion of said $1,100, from May 1, 1892, to July 16, 1892. 'That plaintiff should be allowed the sum of $1,500, being amount of last payment under the contract; the further sum of $215, the cost of erecting the additional stairs, etc.—making together the sum of $1,715. From such amount should be deducted the sum of $495.65, paid by defendant Hopkins for painting, etc.; the further sum of $840, as liquidated damages, under section 12 of contract ; $10 per day from April 22, 1892, to July 4, 1892. That plaintiff is entitled to recover upon the evidence from the defendant Hopkins the sum of $379.-35, with interest thereon from July 16, 1892, and that the judgment entered herein on May 26, 1894, be modified to conform there with,-and that in other respects said judgment stand, without costs.

Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulates to reduce the judgment to $379.35, with interest from July 16, 1892. If such stipulation is filed in twenty days, judgment so modified is affirmed, without costs.

All concur.  