
    William M. Sherwood, Resp’t, v. Tjark J. Houtman, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Contract—Breach.
    In an action for services under an agreement to construct a stable floor so as to be water-tight, plaintiff is not entitled to recover, if such floor is not water-tight.
    Appeal from a judgment in favor of the plaintiff.
    
      Thomas K Stewart, for app’lt; Arthur Hurst, for resp’t
   Pratt, J.

The contract was in writing, and required the stable floor to be water-tight. As the ground floor was to be used as a repository for carriages, it was clearly necessary that the floor above should be absolutely tight, or the business could not be carried on. Both parties contracted upon that principle. There is no substantial conflict of evidence as to the fact that the contract was not so completed. It is true that plaintiff and some of his witnesses testify in general terms that he completed the floor so as to be water-tight; but that is, from the nature of the case, only matter of opinion. They so completed it that they expected it to be water-tight. But the proof is conclusive that the floor was not water-tight, and the evidence sufficiently shows that the floor was built upon a wrong principle, and required to be re-laid before it could be tight. The plaintiff failed in the essential part of his contract, and the verdict in his favor was contrary to the evidence.

The order denying a new trial must be reversed, and a new trial granted, with costs to abide the event.

All concur.  