
    Carel Parrish, Respondent, v. Jacob Fishel, Appellant.
    
      Contract—action on hnilding contract.
    
    Appeal by the defendant from a judgment of the City Court of New Rochelle in favor of the plaintiff, rendered on the 39th day of February, 1913, and from an order .made on the same day, denying his motion for a new trial.
   Thomas, J.:

The plaintiff, lessor, has sued on a lease (1) for rent, $350; (3) for breach of agreement in the written lease to build a garage on the premises that should cost not less than $1,000. The defendant pleaded that the rent had been paid to the extent of $100 by work and material furnished to the plaintiff, but the jury found against him. He also showed under objection, but did not plead, an agreement to surrender the lease for some days before its expiration for an agreed rebate of $50. The plaintiff denied and the court properly declined to submit that issue to the jury. The plaintiff offered expert evidence by one Watson that the reasonable cost of the garage was $576, and the estimated cost of labor and material is g£ven in detail. The defendant is a builder, and shows that he paid for labor and material for the building $1,195, or $1,095 if no allowance be made for his labor. The question is not what Watson or some other would do it for, but what it cost. The stipulation.was that the defendant should do it; that he should be responsible and use his judgment, and unless it be shown that he acted in bad faith or improvidently, or without reasonable skill in-laying it out and in furnishing material and labor, the money he expended must be accepted. It is objected that the building does not answer to the agreement in the lease. That question was not submitted, at least not so as to be the issue. Moreover, the plaintiff agreed to deduct $50 per month on account of the garage, and did so voluntarily each month until the whole amount was accepted for rent from October 1, 1909. She did this deliberately, as her letter of November 8, 1910, indicates, and gave receipts for the full amount. So that she has accepted the cost of the building on the basis of a cost of $1,000, that is, she has accepted the building at the cost of $1,000 in payment of rent, although she states that she knew of its insufficiency early in the term. Now she would recover back what she has allowed. There has been a plain acceptance of the garage at a cost of $1,000 and in fulfillment of the stipulation to build it." The judgment and order should be reversed and a new trial ordered, unless the plaintiff, within twenty days, stipulate to reduce the recovery to $250, and in case such stipulation be made, the judgment and order are affirmed, without costs. Jenks, P. J., Hirschberg, Burr and Carr, JJ., concurred. Judgment and order of the City Court of New Rochelle reversed and a new trial ordered, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery of damages to the sum of $250, in which case the judgment as modified, and the order, are affirmed, without costs.  