
    ROCHKIND et al. v. JACOBSON.
    (Supreme Court, Appellate Division, Second Department.
    May 1, 1908.)
    1. Contracts—Performance—Substantial Performance—Defects in Performance.
    In an action to recover the amount alleged to be due on a building contract, the complaint alleging performance of the' contract, omissions or defects of a trifling nature will be disregarded, and deductions may be made from the contract price for minor omissions or defects, made inadvertently and in good faith, even though they are substantial, instead of judgment being given for defendant; but the omissions or defects may be such as to show themselves an intentional omission, so as to show as a matter of law that the contract was not substantially performed.
    2. Same.
    In an action to establish and foreclose a mechanic’s lien on property for the amount alleged to be due on a building contract, the complain? alleging substantial performance, where the contract price for the materials furnished was $3,100, and the evidence showed that materials to the value of $314 were not supplied as provided by the contract, it was error to leave to the jury whether the omissions were substantial, and to find as a fact,, after the verdict, that the omissions were not substantial, since the facts showed that plaintiff’s performance was not substantial as a matter of law.
    Appeal from Special Term, Kings County.
    Action by. Samuel Rochkind, Abraham Cohen .and Abraham Mirken, copartners, comprising the firm of Rochkind, Cohen Sr Co., against Judah Jacobson. From a judgment for plaintiffs, defendant appeals.
    Reversed, and new trial ordered.
    Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and MILLER, JJ.
    William S. Maddox (Philip E. Goodfleisch, on the brief), for appellant.
    Abraham B. Schleimer, for respondents.
   HOOKER, J.

The action is to establish and foreclose a mechanic’s lien on real property. The complaint' alleges substantial performance. The plaintiff had judgment. The contract price was $3,100. There has been allowed to the defendant $314 for work which the plaintiff has not performed, in order to complete the contract. This is more than 10 per cent, of the contract price. Waiver of substantial performance is neither pleaded in the complaint nor proved by any satisfactory evidence. Under ordinary circumstances, and these in the record are not extraordinary, a failure to perform 10 per cent, of the contract price will not admit of the claim of substantial performance.

• The judgment should be reversed, and a new trial granted; costs to abide the event.

Judgment reversed on the law and facts, and new trial granted; costs to abide the final award of costs. All concur.

GAYNOR, J.

(concurring). While in an action to recover the amount alleged to be due on a building contract, on a complaint alleging performance of the contract, omissions or defects so trifling as to come under the maxim that the law does not regard trifles will be disregarded, and also deductions may be made from the contract price for minor omissions or defects which occurred inadvertently and in good faith and do not come under the class of trifles but .are substantial, instead of judgment being given for the defendant,- that is not the case before us. In the performance of such contracts such omissions or defects may so occur in the multitude of details. But on the other hand, there are cases where the omissions or defects are so substantial and material as to require in and of themselves a conclusion as matter of law that the contract was not substantially performed, or where the same conclusion may be required by minor substantial defects which, though not large and substantial enough to show willful and intentional omission in and of themselves, were nevertheless willful and intentional as matter of fact. Van Orden v. MacRae, 121 App. Div. 143, 105 N. Y. Supp. 600. As the jury were charged in the present case, it appeared on the testimony for the plaintiffs that there were 36 fire escape ladders, and also 8 iron bar cellar grates or doors, not supplied and put in, all of the value of $314 at least. It was error to leave to the jury to find that these omissions were not substantial; and the finding of fact to that effect after the verdict of the jury, which was rendered on framed issues, came back to the equity part was also erroneous. The contention made for the plaintiffs here that the defendant prevented him from doing the omitted work is without any foundation in the evidence. There were also other omissions so substantial that they must be deemed willful and intentional.  