
    George Derr, Plaintiff, v. Patrick H. Kearney, Defendant.
    (Supreme Court, New York Special Term,
    January, 1905.)
    Mechanic’s lien — Substantial performance of contract — Burden of proof — Material omissions — Depth of excavations for foundation walls.
    Where an action to foreclose a mechanic’s lien of the unpaid balance due upon a building contract is so framed that a recovery must depend upon a substantial performance of the contrae! by plaintiff and the evidence shows that there has been a material and substantial omission in the construction of the foundation walls of the building, which plaintiff failed to supply after notice and ample opportunity, he has not discharged the burden of showing substantial performance so far as the omission, the cost of remedying which was not proven, might be made the subject of deduction from the contract price.
    
    Where a statute, regulating the protection of building walls between adjoining owners, places upon the owner of a building the ¡burden of protecting the structure if the foundation walls are insufficient for its protection, where an adjoining owner makes an excavation of less than ten feet, and the evidence in an action by the contractor to foreclose a mechanic’s lien establishes that while the specifications required that excavations for foundation walls ■■should be carried down ten feet, three inches, they were in fact less than ten feet in depth the deficiency, which plaintiff failed to remedy after notice and ample opportunity, cannot be viewed as immaterial for the purposes of a finding that the contract was substantially performed.
    Action to foreclose mechanic’s lien.
    John Mulholland, for plaintiff.
    R. B. Kelly (Joseph Fettretch, of counsel), for defendant.
    
      
       See Van Clief v. Van Vechten, 130 N. Y. 571. Whether defects or omissions are substantial or merely unimportant mistakes, questions of fact. Miller v. Benjamin, 142 N. Y. 617. Substantial deviations or omissions intentionally made will bar a recovery, d’Andre v. Zimmermann, 17 Misc. Rep. 360; Murphy v. Stickley-Simonds Co., 82 Hun, E61; Fox v. Davidson, 36 App. Div. 462.
    
   Bischoff, J.

The plaintiff claims a lien for the balance of the contract price upon completion of the building, less the value of certain minor items concededly omitted, and, in addition, for the value of extra work.

As the action is framed, the recovery must depend upon the plaintiff’s substantial' performance of his contract, and, while the other points in dispute may, perhaps, be deemed, insufficient to oppose a finding that the contract was substantially performed, it is impossible to escape the conclusion that there has been a material and substantial omission in the construction of the foundation walls of the building, an omission which the plaintiff failed to supply after notice and an ample opportunity, and the cost of remedying the defect not having been shown for the purpose of a possible deduction from the contract price.

The specifications required that excavations for foundation walls be carried down ten feet three inches below grade, •the foundations to be built upon a base course of large flat stones of a designated size.

That this requirement for the depth of the foundations was material becomes apparent from the provisions of the statute which regulates the matter of the protection of building walls, as between adjoining owners (Laws of 1892, chap. 27d, §9), and, in effect, places upon the owner of a building the burden of protecting the structure, if the foundation walls are not sufficient for its protection, where the adjoining owner makes an excavation of less than ten feet. Obviously, it was important to the defendant that the foundations should be actually something more than ten feet in depth, and any deficiency in this respect cannot be viewed as immaterial for the purposes of a finding that the contract was substantially] performed.

The plaintiff testified that he carried the foundations down; ten feet, but his gauge, as it appears, was nothing other than, some unidentified point which he alluded to as a “ surveyor’s mark.” Whether this mark was at a point which would actually result in a measurement of ten feet for the foundations, was a matter which the plaintiff’s case leaves wholly unproven. Talcing the plaintiff’s own statement, however, he had not complied with the contract since the depth of the foundations was to be ten feet three inches, and, as against this very unsatisfactory prima facie evidence, testimony ha? been given for the defendant which leads irresistibly to the conclusion that the foundations were much less than ten feet in depth. An actual test was made with this- apparent result, and the plaintiff has not controverted the defendant’s testimony that the defect was pointed out to him (the plaintiff), was admitted by him to exist, and that he failed to avail himself of a reasonable opportunity held out to supply what had been omitted. Under these circumstances, I cannot find that there has been a substantial performance of the contract; indeed, the weight of the evidence is that the contract has not been performed and that the defendant justly withheld the certificate of approval, the production of which is made a condition precedent to the plaintiff’s right to payment.

What the cost of carrying the foundations to the proper depth might be is not proven, and, of necessity, that cost cannot but be substantial in view of the nature of the defect to be supplied. As the case stands, therefore, there has been a material omission of performance, and the plaintiff has not discharged the burden of showing substantial performance, so far as the omission might be made the subject of deduction from the contract price. Furthermore, the required course of fiat stones was omitted, and the plaintiff has not controverted the defendant’s testimony that this requirement was modified only on condition that concrete of a certain thickness be substituted, which condition was not performed.

Of the two items of extra work claimed, I find that the saddle ” supplied should be allowed for, in the sum of forty-one dollars and twenty-three cents, and the further item of eleven dollars for extra beams supplied should be allowed, making in all fifty-two dollars and twenty-three cents, for which sum the plaintiff may have judgment establishing his lien, without costs.

. Judgment for plaintiff, without costs.  