
    George W. Kingston, Respondent, v. Harry Berry, Appellant.
    Appeal from a judgment in favor of the defendant rendered on the 20th day of February, 1893, in the District Court of the city of Hew York for the tenth judicial district.
    W. Stebbins Smith, for appellant.
    J. C. Julius Langbein, for respondent.
   Leventritt, J.

The plaintiff, a subcontractor under the defendant, recovered judgment for a. balance due on certain plastering in the house of one Hannah J. Allen, which the defendant had agreed to erect. A written contract was entered into between the parties .to this action, and therein reference was made to the plans and specifications according to which all the work, including the plastering, was to be done; no reference was, however, made to the general contract between the defendant and Mrs. Allen.

It was admitted that the balance had not been paid, the defendant maintaining his. right to withhold it on account of plaintiff’s, defective work. Upon hearing the evidence on the issue thus raised, the' court found against the defendant and his just conclusion, involving merely the solution of a conflict of evidence, we cannot disturb. Conroy v. Allen, 23 Misc. Rep. 125.

The appellant, however, predicates error on the exclusion of the general contract between Mm and Mrs. Allen. But none of its conditions were' imported into the plaintiff’s plastering contract, which was an. entirely independent agreement. Further examination of. the excluded contract shows that none-of its provisions affect the rights of the parties. ’ '■

The -judgment should, therefore, be affirmed.

Freedmae, P. J., concurs.

MacLean, J. (Dissenting.)

As subcontractor the plaintiff agreed tb plaster the house according' to plans and specifications,” whiqh required -all mortar to be applied in the best manner, welltrowelled, leaving the. surface' straight and. true; .to. repair and make good all blemishes and damages to' plastering by other workmen, and that the1 entire work in all its parts be done in a workmanlike and substantial manner and to be- approved by the archi-. tect.. This he-did not do, by his own-admissions. ■ According to. the evidence, the contractor-, the defendant, had to throw off, or did throw off, for the plaintiff’s remissness more than the amount claimed herein, upon the settlement with .the owner, whose,son testified that the wind came through behind, the window casings, because of. the bad plastering, and'that its unsightliness was .to be covered by wall papering. It was not a compliance with his covenant to repair or offer to repair the blemishes and damages after the owner had moved into her house, in which the plaintiff had left his work to'be a discomfort and ah.eyesore. . Ror.-should he, after so acquitting himself)" be allowed compensation " as "’for work done, in all its parts in a workmanlike and substantial manner.

Judgment affirmed, with" costs to the respondent. ■  