
    (21 Misc. Rep. 690.)
    KOHL v. FLEMING et al.
    (Supreme Court, Appellate Term.
    November 24, 1897.)
    •1. Action on Contract—Failure to Perform.
    A builder who has tailed to completely perform his contract in every detail cannot recover the contract price less deductions for the necessary expense of completing the work, where an intention to substantially perform has been negatived by his refusal to complete when called on.
    2. Counterclaim—Enforcement. ,
    Where a contractor, for lack of substantial performance, cannot recover even the agreed price less expense of completion, the defendant’s counterclaim for a smaller sum for damages from defects in the work fails also.
    Appeal from Fifth district court.
    Action by Henry Kohl against Charles Fleming, James Spearing, and Hugh Spearing. From a judgment in favor of defendants Spearing on a counterclaim, plaintiff appeals. Modified.
    Argued before DALY, P. J., and McADAM and BISCHOFF, JJ.
    Simon Sultan, for appellant.
    Andrew Wilson, for respondent Fleming.
   BISCHOFF, J.

The plaintiff claimed a lien upon the premises owned by the defendant Fleming, for an unpaid balance alleged to be due him under an entire contract, whereby he had agreed to perform certain specific work upon the interior of the building in question, for the sum of $380; this agreement having been made with the defendants Spearing, who were alleged to have been under contract with the owner for the erection of the building, which was to he used as a stable. Defendants Spearing had made payments to the plaintiff, on account of the contract, aggregating $313.80; and to his claim for the balance, together with a demand for the value of alleged extra work, they interposed a counterclaim of $30, for -damages sustained bv them because of his failure to perform, denying that he was entitled to anything under the contract or for extra work. Upon the issue of performance the evidence was in direct -conflict, but, from the testimony adduced for the defense, the trial court was well authorized to find that the plaintiff had not substantially fulfilled the agreed requirements, and had refused to supply the omissions when his attention was called to them. This being found as a fact, the plaintiff was not entitled to a recovery of the contract price, nor could he demand that he be credited with that amount, less deductions for the necessary expense to which the defendants were put when completing the work (Woodward v. Fuller, 80 N. Y. 312), since any intention to substantially perform was negatived by his refusal to complete when called upon.

The finding that no labor was furnished by him beyond such as the contract called for was also supported by acceptable evidence, and, so far as the judgment operated to deny the right to a lien or-to a personal recovery against the defendants Spearing, it may not be disturbed. The allowance to these defendants of $40 upon their -counterclaim, however, was unauthorized, as a matter of law, apart from the objection that the award exceeded the demand of the-answer, and was not supported in its extent by the proof. This counterclaim was for expense incurred by the Spearings in completing the work which the plaintiff had assumed to perform; and this-expense, so far as the evidence shows that it was incurred for labor which was called for by the plaintiff’s contract, was occasioned by the necessary employment of a carpenter’s labor for five days, at the rate of §3.50 a day; in all, §17.50. Had the plaintiff completed the work, and thus become entitled to the agreed compensation, or had the defendants completed it for his account, the balance due him would have been considerably in excess of this sum; and while, for his nonperformance, he could not establish a right tó that balance, the defendants’ counterclaim of a lesser amount must be held to have failed with the failure of the contract out of which it arose. Walker v. Millard, 29 N. Y. 375; Woodward v. Fuller, supra.

Therefore the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event, unless the respondents Spearing shall within five days stipulate that the judgment be modified by striking out the provision for an affirmative recovery; and, as so modified, the judgment will be affirmed, without costs. All concur.  