
    Solomon Lashinsky, Respondent, v. Clementine M. Silverman et al., Appellants.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Building and construction contracts — Substantial performance — When not established.
    Where it appears that, under a contract for the carpenter work to be done in the alteration of certain buildings, the contractor had failed to put in a certain number of wardrobes, which omission was equal to ten per cent, of his whole undertaking, had made another omission that equalled fifteen per cent, of the same and had failed to perform in other minor particulars, he has failed to show substantial performance of his undertaking and cannot recover.
    Appeal by the defendants from a judgment in favor of the plaintiff entered in the City Court of the city of New York.
    J. Charles Weschler (S. S. Myers, of counsel), for appellants.
    Henry Salant, for respondent.
   MacLean, J.

The plaintiff undertook, in writing, with the defendant first named, to “ provide all the materials and perform all the work for the carpenter work * * * all the carpenter work to be done in ” the alteration of certain buildings the defendants owned, or were interested in, for $2,100. Claiming to have fulfilled, substantially, all of his undertaking, the plaintiff brought this action and has recovered judgment for a balance of $300 on the agreement and $492, besides, for extra work. These sums are not supported sufficiently by his proof, which fails to show substantial performance of his undertaking. He agreed, for example, to, but did not, alter all the closet partitions between the dining rooms and kitchens, fill up door openings to dining rooms, cut new openings in kitchens and furnish new doors, trim and hardware. As excuse for nonperformance hz offered the assertion: “ My agreement specifies distinctly that I shouldn’t do it,” although there was for it only, the provision “ The ice box partition is not to be removed.” Again he said “ I did not do those new doors; tl- it was excepted from my contract.” The contract shows no such exception. Of sixteen new wardrobes, he put in bo t two, a substantial omission, amounting to ten per cent, i Ms whole undertaking, according to testimony, not condieted, that the wardrobes of rather elaborate fashion and ti ings were worth $15 a piece. For another omission, one i n ialling 15 per cent, of the contract price, he claimed verbal horization from Mrs. Silverman, who denied it and who s plausibly supported by the architect and by her son. Turning to the claims for extra work: Possibly to avoid the call each man to his trade,” it was provided, as noted above, that the plaintiff should do all the carpenter work to be done,” but he asserted a claim of $150 for the cutting of the beams, called headering, with other items for other things covered, at least in part, by his agreement and undertaking. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Scótt and Gildersleeve, JJ., concur.

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