
    Louis Villhauer, Respondent, v. Paul Gross, Appellant.
    Second Department,
    April 22, 1910.
    Foreclosure of mechanic’s lien — inconsistent findings •— substantial performance — failure to lay foundations as agreed.
    Findings that the plaintiff suing to foreclose a mechanic’s lien has completely performed the contract and also that he has substantially performed are inconsistent.
    A finding of substantial performance cannot be sustained where there is no finding as to the items of performance omitted, their value and the circumstances of the omission.
    There is no substantial ■ performance of a building contract which required the foundations to be laid four feet below ground when part of the foundation was laid on the surface and ground filled in to the depth of two feet.
    Appeal by the defendant, Pan! Gross, from a judgment of the County Court of Queens county in favor of the plaintiff, entered' in the office of the clerk of said county on the 9th day óf April, 1909, upon the decision of the court rendered after a trial at a Special Term of said .court, and from said judgment as modified by an order entered on the lOtli day of May, 1909, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 1st day of May, 1909, denying the defendant’s motion for a new trial on the- ground of newly-discovered evidence.
    Paul Gross [Herman R. Elias and Thomas H. Neilson with him on the brief], for the appellant.-
    
      Constantine T. Timonier, for the respondent.
   Per Curiam :

This is an appeal from a judgment in favor of the plaintiff in an action brought in the County Court of Queens county to foreclose a mechanic’s lien. The court found for the plaintiff in the.sum .of $525.75, with costs and disbursements. By the stipulation of counsel, submitted with the record on’ appeal, the amount found due was reduced to $478. The controversy between the parties was as to whether the plaintiff had fully or substantially performed his building contract. The complaint alleges both complete and substantial performance and contains an allegation that if there were any deviations or defects in the performance of the contract they were waived by the defendant. A careful examination of the testimony shows that the contract was not completely performed, but that on the contrary there were many and somewhat important failures to perform. The learned trial court found that the contract had been completely performed, and then in the same . set of findings found that it had been substantially performed. There can be no question whatever that the contract had not been completely performed. These findings are inconsistent on their face. The court’s finding that it had been substantially performed is not sufficient in form, as there is no finding as to the items omitted from the performance or the circumstances of the omission or their value. There is, therefore, nothing to show whether these items were so minor as compared with the entire contract as not to defeat a claim of substantial performance ; nor can we tell from the findings which of the many items in dispute were considered as not performed, or what amount was allowed for the respective items for non-performance found by the court. Some of the items in dispute were admitted by the plaintiff, and proof was given by the defendant as to the value of the other items. An arithmetical computation shows that the court must have necessarily made some allowance for non-performed items, but this allowance does not equal the amounts proved by the defendant. There was a very substantial item in which the plaintiff did not perform. His con-" tract required him to put a foundation wall under the building four feet below the ground. The grade was sloping, being higher" in the front than in the rear. It was conceded on the trial that the foundation in the rear was placed upon the surface of the ground, and that some filling was subsequently made by the plaintiff which increased the level of the ground two feet above the bottom of the foundation. The defendant was entitled to have the foundation four feet below the surface in order to protect it from the frost, etc.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Hirsohbebg, P. J., Buee, Thomas, Rich and Garb, JJ., concurred.

Judgment and order of the County Court of Queens county reversed and new trial ordered, costs to abide the event.  