
    MacKnight Flintic Stone Company, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendant.
    
      Contract to build, according to- certain specifications, a water-tight cellar—what proof of its performance is required.
    
    Where a contractor agrees to construct a cellar in accordance with certain specifications, and that when so constructed it will be water tight, he must, in an action alleging performance of his agreement, show not only that he has complied with the requirements of the specifications, but that the cellar as so -constructed is water tight.
    Motion by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, for a new trial upon a case containing exceptions,' ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff, rendered on the 26th day of April, 1897, after a trial at the New York Trial Term.
    
      Chase Mellen, for motion.
    
      L. Laflin Kellogg, opposed.
   Patterson, J.:

This cause comes up for review on exceptions ordered by the trial justice to be heard in the first instance by this court, and the question is, whether under the proofs the plaintiff was entitled to the verdict rendered in its favor. The action was brought to recover the contract price of certain work and labor performed and materials furnished by the plaintiff to the defendant under a formal written contract. The plaintiff alleges in its complaint that it strictly performed the contract. That allegation was denied and a plain issue was thus raised concerning it.' That was the real issue before the jury, to which, under the pleadings, the evidence was to be addressed. It appeared that the purpose of the contract was to obtain a water-tight cellar for a court house which was being built for the defendant. The end to be obtained was distinctly and specially contracted for, but it appeared in proof that the work to be done was to he performed according to certain specifications binding upon the plaintiff, and from which it was not at liberty to depart. There was conflicting evidence as to those specifications being adequate to accomplish the required result which the plaintiff contracted to produce. There was also evidence tending to show that the specifications were complied with, but that, notwithstanding such compliance, the object of the contract was not attained. Substantial conformity of the work with the specifications may have been shown; but the right to recover under the contract does not depend altogether on compliance with' the specifications, but, as this action is framed, upon doing that which the plaintiff contracted to do as a result or consequence of conforming to the specifications. When this cause was before us on a former appeal (see 13 App. Div. 231), we held that the plaintiff was bound to furnish a water-tight and not a' water-drained cellar. We sent the case back for a second trial on matters that did not relate to the construction of the contract. There was a question of fact left open not only whether the plaintiff had done the work according to the specifications, but also whether it had produced the result or condition required- by following the specifications, and not by substituting an apparatus the use of which might make a water-drained, but not a water-tight cellar. And though the apparatus was put in with the approval of an employee of the ■ department of public works, that employee had no authority to consent to any modification of the specifications forming part of the contract. It was not held that the plaintiff might recover the whole contract price by satisfying the jury that it had faithfully followed and complied with the requirements of the specifications, but that such compliance must be shown as one step in the establishment of the plaintiff’s allegation that the contract had been duly and faithfully performed. So far as construction was given to the contract, it was decided that the plaintiff was bound to furnish a water-tight cellar. It contracted so to do, and to do it in a particular way. That way was deemed by both parties to be the proper and sufficient one. The specifications were as much those of the plaintiff as of the defendant. ' The plaintiff was free to make the agreement or to refrain from doing so. It was satisfied that' it could accomplish the purpose by doing.the work - in the way pointed out by the specifications. As said before, it contracted not only to do the work according to the specifications, but to make the cellar water' tight by doing the work strictly in that way, and ..therein the case differs from Weld v. Goldenberg (65 Fed. Rep. 466). The plaintiff understood what its , obligation was, and attempted to substitute drainage of the cellar for making it water .tight. That was not performance as we held on the previous appeal. Suing, as it does, on the contract, and tendering the issue of performance^ the plaintiff’s right to recover depends upon performance. The proofs showed clearly that the contract was not performed, even if all the work required by the specifications were done. The plaintiff must recover secundum allegata et probata. It cannot set up one cause of action .and recover on another, and the .evidence was. insufficient to support the verdict.

The exceptions must be sustained and the verdict set aside and a new trial ordered, with costs to defendant to abide the event.

Van Brunt, P. J., Barrett and Rumsey, JJ., concurred; Williams, J., dissented.

Exceptions sustained, new trial ordered, costs to defendant to abide event. ■  