
    The Pennsylvania Steel Company, Respondent, v. Henry M. Susswein, Appellant.
    First Department,
    June 4, 1909.
    Contract — agreement by lessee to build dock for lessor — contract construed — recovery of purchase price not barred by failure of lessee tó complete grading — estoppel — counterclaim — when no abandonment of contract.
    Where in consideration of the execution of a lease of a portion of a tract of land the lessee agreed to build a crib dock upon she premises within three months, the lessor to pay a specified price “ .-.pon the completion of said dock,” with a further agreement on the part of the lessee “to make the necessary fill inside of said crib from the upland and to grade the remainder of said land * * * to said dock,” no time for the completion of the grading being mentioned, the lessee having completed the dock to .the satisfaction of the lessor, is entitled to recover the agreed price, although he has not yet completed the grading and filling.
    Where the lessor notified the lessee that the dock was satisfactory and the lessee in reliance thereon paid the contractor who did the work the lessor is estopped from thereafter asserting that the dock was not completed according to the contract.
    Evidence in an action on such contract examined¡ and held, sufficient to justify a finding that the dock was completed according to the plans and specifications agreed upon. -
    Even if it be assumed that the'lessee was required to'complete the grading before suing to recover the agreed price of the dock, the evidence was sufficient to sustain a finding that the grading and filling had been substantially completed.
    Under the contract aforesaid the lessee by asserting that the contract only called for the grading of .’.he leased lands and that the contract had been duly carried out, did not abandon the contract so as to prevent a recovery for the agreed price of the dock. Moreover, as the lessee retained possession of the lands, there was no abandonment of the contract, although it was still under the obligation to grade not only the lands leased to it, but the portions of the land retained by the lessor.
    As under the contract the lessee was entitled to complete the grading at any time before the lease expired, the lessor sued for the price of the dock during the term, cannot counterclaim for damages for failure to complete the grading, as his cause of action, if any, has not yet accrued.
    
      Appeal by the defendant, Henry M. Susswein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day. of October, 1908, upon the verdict of a jury; also from so much of an order entered in said clerk’s office on the 20th day of October, 1908, as denies the defendant’s motion for a new trial made upon the minutes, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 22d day of October, 1908, denying the defendant’s application to have the verdict of the jury amended and the judgment entered thereon corrected.
    
      Alton B. Parker, for the appellant.
    
      H. Snowden Marshall, for the respondent.
   McLaughlin, J.:

On the 9th of October, 1906, the defendant was.the owner of a tract of land in Long Island City fronting on the East river and immediately adjacent to land acquired by the city of New York for the so-called Blackwell’s Island bridge, which the plaintiff was constructing. On the date mentioned, plaintiff entered into an agreement in writing, modified by two supplemental agreements, with the defendant by which he leased to it, for a term of two years, a portion of the land owned by him. In consideration of the lease, the plaintiff agreed to build, within three months, a crib dock upon the premises leased and the adjacent premises belonging to the defendant, according to certain plans and specifications which were annexed to the contract. It was to belong to the defendant, who agreed to pay to the plaintiff $3,500 in cash “ upon the completion of said Dock.” The plaintiff, further agreed “ to make the necessary fill inside of said crib from the upland, and to grade the remainder of said land from Vernon avenue to said Dock.” This action was commenced on the 13 th of J une, 1907, the complaint alleging that the plaintiff had duly constructed the dock, arid that the defendant had refused to pay the agreed price, for whicli judgment was demanded. The answer contained certain denials, and alleged, as a counterclaim, that the plaintiff had not constructed the dock according to the contract in specified particulars, and had failed to grade the land from Vernon avenue to the dock. The jury rendered a verdict in favoi of the plaintiff for the amount claimed, and against the defendant on his counterclaim. From the judgment entered thereon and an order denying a motion for a new trial, defendant appeals.

The contract provides in express terms that “ the said Henry M. S.isswein agrees on his part to pay to the Pennsylvania Steel Company in further consideration the sum of Thirty-five Hundred (3,500). Dollars in cash upon the completion of said Dock.” The defendant, therefore, was obligated to pay to the plaintiff the sum of $3,.500 when the dock was completed, irrespective of plaintiff’s covenant to do the grading and filling. This was the construction placed upon the agreement by the. trial court, and from the instruction to the jury to this effect no exception was taken. The dock was constructed for the plaintiff by the Edward B. Jenks Company, and before plaintiff paid such company, it requested the defendant to look it over and see whether or not it was satisfactory. The defendant did so, and thereafter plaintiff wrote him, saying: “We under stand that you and your representative, Mr. Hunt, looked over the dock built by Edward B. Jenks Co. at Eavenswood and that you have agreed to give formal acceptance of this work providing we wrote you, and in order that our contract with the Jenks Company can T>e closed as early as possible, we would appreciate a prompt reply.” On the eleventh of March the defendant answered the letter, saying, among other things: “ 1 am in receipt of your favor of the 8th, and in reply desire to advise you that the writer, as well as Mr. Hunt, looked over the crib and we find same to be satisfactory,” Hunt, referred to in this letter, was a dock builder employed by the defendant to see that the work was properly done. The plaintiff, after the receipt of this letter, paid the Jenks Company for constructing the dock. The defendant, having notified the plaintiff that he found the dock to be satisfactory,” and plaintiff having acted on that notification and paid the Jenks Company, could not thereafter be heard to say that the dock was not completed according to contract, and for the reason that when one asserts the truth of a fact to another and that party acts upon the statement, the party asserting the fact cannot thereafter be heard to say that what he said was untrue, when the result of such statement would be to the prejudice or.injury of the other party. (Meeder v. Provident Sav. Life Assur. Society, 171 N. Y. 432; Payne v. Burnham, 62 id. 69 ; Hobart v. Verrault, 74 App. Div. 444.) Besides, there was sufficient evidence to justify the finding of the jury that the dock was completed according to the contract and the plans and specifications annexed to it. ■ Defendant’s main contention in this respect is that the dock was not completed witliin the meaning of the contract until the necessary fill behind the cribwork had been made, so that the doek could be used. Under the contract itself I am of the opinion that this contention is¡ not sound, but assuming that it is, there was sufficient evidence to sustain the finding that at the commencement of this action the fill had been substantially completed. An engineer employed by the plaintiff testified that on June 13, 1907, the land behind the dock had been filled in to. an elevation of five feet five inches above low-water mark, which was about a foot above high-water mark. This was apparently enough so that the dock could be used, and it in fact was used continuously by the plaintiff. Hunt, who had supervision of the. work for the defendant, testified that in June, 1907, “it was fairly well leveled up. *. * * I did not see anything the matter as far as the fill was concerned.” Irrespective, therefore, of the question that the defendant cannot be heard to say that the dock had not been completed at the time the action was commenced, I am of the opinion that the evidence justifies the finding that it had been, and by reason of that fact the defendant was liable for the $3,500 which he had agreed to pay when- the dock was completed.

If this conclusion be correct, then it disposes of the defendant’s counterclaim so far as it relates to .alleged .defects in the dock. So far as it relates to plaintiff’s alleged failure to do the grading and filling, it seems-to me that no right to recover damages had accrued. to the defendant at the time the action was commenced. The contract contained separate covenants as to the dock and the grading and filling. The dock had to be completed within three months, but no time was mentioned,when the filling and.grading was to be done. It, therefore, follows that the plaintiff might do this work any time before the termination of the. lease, which was nearly two years after the completion of the dock, and until that time the defendant had no cause of action against the plaintiff because it had not completed the grading-and filling. To obviate this difficulty it . is urged that the plaintiff abandoned the contract. It seems that the defendant became dissatisfied with the way in which the grading was being done and on the 23d of May, 1907, in response to his letters on the subject, the plaintiff by its engineer wrote him: “We have examined our contract and find that it only requires us to'grade. the land leased to us, and said contract has, therefore, been duly carried out by us.” If I am right about the proper construction to be put upon the contract, then the defendant was cgrrect in saying that the contract had been “ duly carried out by us,” that is, up to that time. It had over a year in which to do whatever grading and filling had not then been done. The statement that the contract did not require the plaintiff to grade any land except that leased to it was not an abandonment of the contract in any sense. It was at most but the assertion of what the plaintiff deemed a proper construction of it, besides it was. not the construction which the plaintiff itself had put upon the contract as evidenced by the work which it had done, was then doing and thereafter continued to do until about the time this action was commenced. Uor do I think the plaintiff could abandon the contract without surrendering possession of the land leased. Upon defendant’s failure to pay the $3,500 on completion of the dock the plaintiff might have abandoned the contract and given up possession of the land without being liable for- failure to do the grading and filling, but it did not do so. It remained in possession and having done so it remained obligated to do the grading and filling required by the contract. The contract required the plaintiff to grade not . only the land it occupied, but the adjoining strip belonging to the defendant. It states that the dock is to be built upon the leased land and the adjacent premises belonging to the defendant, and plaintiff' agreed to make the fill .inside the crib “from the upland and to grade the remainder of said land.” What the parties evidently had in mind was that all the land behind the dock was to be graded and the earth which was removed, or part of it, was to be used to make the fill behind the crib and this seems to be the construction which the plaintiff adopted before the dispute between the parties arose and it had until the termination of the lease in which to do this work. It was not bound to have the whole or any part of it completed until it surrendered the premises at the time fixed in the contract, and until then defendant had no valid claim for breach of the contract in this respect. The defendant may have a •claim, for such damage, but it cannot be-enforced as. a counterclaim in this action, inasmuch as when the action was commenced the plaintiff had over a year in which to do the grading and filling; in. other words; the interposition of the counterclaim at this time is premature.

At the termination of the lease, if the plaintiff had hot performed, then it became liable to the defendant for the damages sustained, and for which he may maintain an action. Other questions- are raised, but it is unnecessary to consider them.

The judgment is, therefore, modified by striking therefrom the clause determining that the defendant has no cause of action, upon his counterclaim, and inserting in place thereof that the counterclaim be dismissed, and the judgment as so modified and the order appealed from are affirmed, with costs to respondent.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Judgment modified as stated in opinion, and as modified affirmed, with costs to respondent. Settle order on' notice.  