
    Charles McLaren, Appellant, v. Adam E. Fischer, Respondent.
    
      Contract—liability of a contractor who, knowing of a forfeit to be paid by his employer if work is not done within a specified time, delays its execution beyond a ' time stated by him to be sufficient for its performance.
    
    Adam E. Fischer and Mary T. Rix, the owners of adjoining lots, entered into an agreement hy which Mrs. Rix agreed to permit Fischer to take down the wall of her building and erect a new party wall; a tenant of the building having objected to the wall being demolished during her tenancy, Mrs. Rix made inquiry of Fischer as to the time which would be occupied in making the alterations, and being told that three weeks would suffice, entered into an agreement with such tenant, by which she agreed to compensate the latter for any damages which she might sustain by reason of the removal of the wall, such damages being stipulated at twenty-five dollars per day with an additional allowance of ten dollars per day for each day in excess of three weeks from the time of commencing the alterations. It was agreed that the alterations should be made in “an expeditious and workmanlike manner,” and that Mrs. Rix would indemnify the tenant against any damages resulting “ through failure to comply with the foregoing conditions, or through unreasonable delay in completing said alterations.”
    Fischer, “ in consideration of the execution of the above agreement by Elisa Lefebvre ” (the tenant), agreed “to do the work mentioned in foregoing agreement in the manner therein mentioned.”
    In an action brought hy the assignee of Mrs. Rix to recover the excess of stipulated damages which she had been compelled to pay by reason of delay in the execution of the work, it was
    
      Held, that Fischer’s knowledge of the terms and conditions of the contract made by Mrs. Rix with her tenant, imposed upon him a contract liability to complete the work within that time or, at least, a duty to complete it within a reasonable time;
    That a delay of fifty-one days beyond the period when the wall should have been completed was unreasonable, and imposed upon the defendant the burden of establishing a sufficient excuse therefor;
    That proof that the delay resulted from the failure of an iron company to deliver the iron work required for the building was not, of itself, an excuse, as it did not appear that such delay was not wholly the fault of the defendant.
    Woodward, J., dissented.
    Appeal by the plaintiff, Charles McLaren, from a judgment of the - Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of March, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term.
    
      The transactions out of which the canse of action arose are fully stated in the opinion of Woodward, J.
    
      H. T. Ketcham, for the appellant.
    
      Charles Strauss, for the respondent.
   Hatch, J.:

I am linable to agree with the conclusion reached. by Mr. .Justice Woodward in this case. Before the contract was made between the plaintiff’s assignor and Mrs. Lefebvre the defendant had notice of it, and knew its terms and conditions. By virtue of that contract he must be presumed to have known that plaintiff’s assignor had obligated herself to pay damages at the rate of twenty-five dollars a day during the period covered by the taking down and erection of the party wall. It was in view of this condition that the agent of plaintiff’s assignor inquired of the defendant the time which would be necessarily occupied in taking down- and putting up the wall; and his answer, in view of .the conditions and the obligations assumed, constituted a contract upon his part to tear down and erect a structure within three weeks. Or, if it be not held to be' a legal binding contract to perform the work within that time, it, at least, clearly imposed upon him the duty of performing the work within a reasonable time, as he was bound to make the sum that plaintiff’s assignor was required to pay as light as possible. 'It is clear that the delay of fifty-one days beyond" the period when the Wall should have been completed, if unexcused, was an unreasonable delay; and such being the fact, the defendant was bound .to justify the delay by proof of conditions excusing it, and the burden is upon him to establish' the sufficiency of the excuse. (Spann v. Erie Boatman’s Transp. Co., 11 Misc. Rep. 680; affd. on appeal, 157 N. Y. 694.)

The proof in the present case tended to establish that the occasion for the delay was the failure of the iron company to deliver -the iron work required for the building; but whether such delay was the fault of the defendant or of the iron company does not appear ; non constat that it might not have been wholly the fault of the defendant. But the plaintiff was not bound to establish this fact. When he had given evidence of his contract and .. the non-performance thereof by the defendant, then the law imposed a burden upon the latter of explaining the cause of the delay. Mere failure by a third party to deliver material necessary to complete the work might or might not satisfactorily excuse the performance within the given time, but this became a question of fact for the jury. It was not a question which could be disposed of by the court, as the plaintiff made a prima facie case, which,- if unanswered, entitled him to recover. As I view the evidence, merely showing failure of a third party to deliver materials, did not per se answer the case made by the plaintiff. It was, therefore, error to dismiss the com-' plaint, for which the judgment should be reversed.

All concurred, except Woodward, J., who read for affirmance.

Woodward, J. (dissenting):

There was clearly no question to be submitted to the jury in this case. The defendant and Mary T. Rix, plaintiff’s assignor, entered into an agreement on the 29th day of August, 1895, in reference to a party wall, in which Mrs. Rix agreed to permit the defendant to take down the then existing wall of her building on West Houston street, New York city, and to erect a new party wall, the right to use the same being conditioned upon Mrs. Rix paying a certain portion of the cost of constructing said wall. Subsequent to this agreement Elisa Lefebvre, as administratrix, etc., who occupied the building belonging to Mrs. Rix as a restaurant and French boarding house, objected to the wall being taken down during her tenancy. To overcome this objection Mrs. Rix entered into an agreement with Mrs. Lefebvre, in which she undertook to compensate the latter for any damages which she might sustain by reason of the removal of the wall, the damages, other than those resulting from negligence, etc., being stipulated at twenty-five dollars per day, with an additional allowance of ten dollars per day for each day in excess of three weeks from the time of commencing the alterations. It was agreed that the alterations should be made in an expeditious and workmanlike manner,” and the party of the first part covenanted to indemnify the party of the second, part against “ any damages that she may suffer through any negligence of any party engaged in making the alterations aforesaid, or through failure to comply with the foregoing conditions, or through unreasonable delay in completing said alterations.” The defendant, In consideration of the execution of the above agreement by Elisa Lefebvre,” , agreed “ to do the work mentioned in foregoing agreement in the mapner therein mentioned.” Soon after the, execution of this agreement the work of taking down the wall was commenced, but owing to-delay in securing the necessary iron for the superstructure, the work of rebuilding the wall was delayed several weeks, resulting in Mrs. Rix being called upon to pay a much larger sum for damages to-Mrs. Lefebvre than she had anticipated. Her assignor now seeks to' charge the defendant with the excess of cost, upon the theory that he owed Mrs. Rix the duty of completing the work within the-period of three weeks from the time of commencing to take down the original party wall.

The only testimony in the case is that of á Mr. Bunnell, who was. the attorney for Mrs. Rix, in the transaction. , While it might be gathered from this testimony that there was some understanding, between-the parties that the work would be completed within a period of three weeks, I find nothing in the contract signed by -the: defendant which imposed such a duty. His contract was merely to-do the work in the manner provided in the agreement between the the parties,- no mention of time being made; and while it was undoubtedly his duty to do the work in a reasonable length of time, there is no evidence in the case that he failed in the discharge; of this duty. On the contrary, it appears that he used due diligence; in prosecuting the work ás soon as he could get the materials, and it is not urged that he has in any degree failed to perform the work in the manner provided in the main contract. He canñotj therefore, be called upon to reimburse the plaintiff for the money which his assignor may have paid to Mrs. Lefebvre under the contract with' Mrs. Rix. The defendant had nothing to; do with that contract except to carry out his agreement to complete the work in a reasonable time and in the manner stipulated in the • agreement between- the parties to the principal contract.

The judgment appealed from should be affirmed, with "costs.

Judgment reversed and new trial granted, costs, to abide the event..  