
    Robert J. Mahoney, Respondent, v. Robert Smith, Appellant.
    •First Department,
    May 14, 1909.
    Evidence—abandonment of building contract.
    In an action to recover for refusal to allow the completion of a building contract in "which plaintiff claimed that defendant refused to permit him to complete, and defendant claimed an abandonment of the contract. On all the evidence, held, that it was error to refuse to allow defendant to show that an association, which plaintiff joined during the pendency of the contract, promulgated an order to the effect that its members should not employ any more men than they were then employing, nor deliver or receive any material for any building until further authorized tó do so by the governing board of the association.
    Appeal by the defendant, Eobert Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 31st day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of October, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Franklin Pierce, for the appellant.
    
      Claude Gignoux, for the respondent.
   Houghton, J.:

The action is to recover damages for refusal to allow the completion of a building contract made by the plaintiff with the defendant. The plaintiff claims that the defendant refused to • permit him to complete and the defendant claims that there was such an' abandonment of the contract as justified him in taking possession and reletting.

We are of the opinion that the verdict of the jury in favor of plaintiff is against the weight of evidence upon the question of readiness to fulfill on the part of the plaintiff and proper prosecution of the work on his part. We are also of the opinion that error was committed upon the trial in refusing to receive orders promulgated by the board of governors of the Building Trades Employers Association.

The plaintiff’s contract contained a strike clause, and there.is evidence that a strike existed for some portion of the month of May. The plaintiff testified that in the month of June he jpined the Building Trades Employers Association. The defendant offered to show that that association, shortly after the plaintiff joined it, promulgated an order to the effect that members should not employ any more men than they were then employing nor deliver or receive any material for any building until further authorized to do so by the governing board. If the plaintiff voluntarily joined an association and submitted himself to its directions respecting employment of men or continuance of building operations it had a material bearing upon whether he was performing the Contract with defendant with due diligence. The strike clause contained in his contract did not protect him from the consequences of a voluntary lock-out on his part. The defendant’s evidence showed that when he protested that the work was not proceeding as it should, the plaintiff gave as an excuse that he belonged to the association and could not employ any more men than he was employing and that because of the restrictions of the association the work could not proceed more rapidly than it was proceeding. The plaintiff, denied this but admitted that he belonged to the association. It was proper as bearing on the probabilities for the defendant to show the orders promulgated by the association and it was then for the plaintiff to prove whether he was obeying or disobeying them, or whether lie considered himself bound by them or not.

The jury has found very substantial damage resulting to the plaintiff from defendant taking possession of the work and refusing to permit plaintiff to complete his contract, and their verdict might have been influenced by proof that plaintiff had voluntarily put himself in a position so that he could not prosecute the work with proper diligence because of his joining the association and the orders which it promulgated.

We think the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., Laughlin and. Scott, JJ., concurred; McLaughlin, J., concurred in result.

Judgment reversed, new trial ordered, costs to appellant to abide event.  