
    Nason Manufacturing Co., Resp’t, v. Benjamin E. Stephens, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    Contract—To Build—extra work—When mat be recovered for.
    Plaintiff made a contract to build for defendant an extension to a water tower, defendant agreeing to maintain the water at any height desired for the convenience of the workmen; defendant failing to do so, whereby it became necessary for plaintiff to erect expensive scaffolding or to abandon the work. Held, that while plaintiff might have refused to continue the work and brought his action for breach of contract, he was not obliged to . take that course, but might erect the scaffolding and recover the expense of defendant as for extra work, even against defendant's will.
    Appeal from a judgment entered upon report of referee in favor of plaintiff.
    Action by plaintiff against defendant on a contract by plaintiff to build an extension to the stand pipe or water tower of the Coney Island water works. There was a provision in the contract that the defendant should maintain the water level during the progress of the work at any height plaintiff might desire for the convenience of the workmen. The evidence showed that it was designed to work from a raft on the water in the old tower, and that defendant failing to maintain the water at the required level, it became necessary to erect scaffolding, and for the expense of the scaffolding plaintiff seeks to recover.
    
      Orlando L. Stewart, for app’lt; Theodore F. Miller, for resp’t.
   Pratt, J.

The findings of fact upon which the judgment depends were found upon conflicting evidence, and we are not able to say that they are not supported by the testimony. The reference can, in such cases, better than can the appellate court, determine what weight to give to the testimony of the differing witnesses.

We do not find any errors of law requiring a new trial.

The argument of appellant that defendant cannot be held to pay for extra work because he did not request it to be done, and did not promise to pay for it, cannot be sustained. The contract required the water to be kept at a certain height for the facility of construction. Defendant failed to keep it there, thereby making it necessary to abandon the work or to erect expensive scaffolds. When defendant failed to keep the water where he agreed, plaintiff might have refused to continue the work and brought his action for the breach of contract. But he was not obliged to take that course. He might elect to erect the scaffolds and charge the expense thereof as extra work rendered necessary by the act of the other party to the contract. This he might do, even against the will of the other party.

To hold otherwise would deprive a party not in fault of his right to perform his contract and reap the resulting profits.

Judgment affirmed, with costs.

All concur.  