
    Francis J. Murphy and William J. Murphy, Copartners Carrying on Business under the Firm Name and Style of Murphy Brothers, Respondents, v. Number One Wall Street Corporation and Others, Appellants.
    First Department,
    February 17, 1911.
    Contract — delay in performance of sub-contract — damages of general contractor, wben indefinite— extra work — contract construed.
    Where a sub-contract requiring performance within a specified time provides that if the sub-contractor delays the progress of the work so as to cause loss to the general contractor he shall reimburse him therefor, the sub-contractor is only liable for loss caused by his own delay. Hence, although there is evideuce that the sub-contractor did unnecessarily delay the work, there is no basis upon which to estimate the amount due to the general contractor where it appears that the sub contractor was not solely responsible for the loss of the ' general contractor and it is not shown how much of the loss was properly chargeable to him.
    'Where the subrcontract required the sub-contractor to lay brick in the same manner in which brick was laid in a particular building, and the brick as actually laid conformed with'the agreed model, he cannot recover for extra work merely because there was some discussion with the contractor about laying the brick in a different manner.
    Nor can the sub-contractor make a claim for extra work in beveling the brick so as to fit a corner of the building which was not a right angle, if when malting the contract he knew that that corner did not' form a right "angle and that the work could not be done without beveling the corner bricks.
    Where the sub-contract required the sub-contractor to provide work and materials “ for the brick work from curb level up, terra cotta, cut granite, fireproof partitions and plastering,” the general contractor should be allowed a counterclaim based on the sub-contractor’s failure to erect fireproof partitions in the basements, for the phrase “from curb level up” applies only to the brick " work.
    Appeal by the defendants, Number One Wall Street Corporation q,nd others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 30th of December, 1909, upon the decision of the court rendered after a trial at the New York'Special Term.
    
      Alexander S. Andrews, for the appellants.
    
      Thomas F. Keogh, for the respondents.
   Scott, J.:

This is an appeal from a judgment for plaintiffs in an action to foreclose a mechanic’s lien.

The defendants Westlake and McKim. were the principal contractors for the erection of a large building known as No. 1 Wall street, at the corner of Broadway. Plaintiffs were sub-contractors for the brick work from the curb level up, and the terra cotta, cut granite, fireproof partitions and plastering. The controversy, as is not unusual in such cases, relates to claims on the part of plaintiffs for alléged extra work and' counterclaims by defendant for work unperformed and for damages for delay. The plaintiffs’ sub-contract required that they should complete the whole of their work within “ fifty (50) working days,” and plaintiffs agreed that if they shall delay the progress of the work so'as to cause loss for which the owners shall become liable, then they shall reimburse the owners for such loss.” The “ owners ” in this sub-contract relate to and designate the general contractors. The principal contract between the owners of the building and the defendants Westlake and McKim provided that the building should be completed on January 15, 1907, and that if not so completed said defendants should pay to said owners the sum of $100 per day for each day of overtime. The building was not completed until 115 days after the date set. By some compromise between the owners and the general contractors the amount of damages to be paid was liquidated at $6,800, which the general contractors now seek to recover from plaintiffs. The plaintiffs’ obligation was- not to pay anything that the general contractors might be obliged to pay, but only such loss as-plaintiffs themselves might cause, and while the evidence tends to show that plaintiffs did unnecessarily delay their work, it does not appear that they were wholly responsible for the loss to which the general contractors were put, nor does it appear how much of said loss was properly chargeable to them. There was, therefore, no basis upon which to estimate the amount which should be allowed, if any, as damages for plaintiffs’ delays.

. Among the items of extra work claimed by plaintiffs and allowed by the judgment is one amounting to $974.58 for laying the . exposed exterior brick walls with measured one-inch joints. The manner in which these exterior walls were to be laid was specified in the principal contract by reference to another building known as the Bush Terminal Company’s Building. The front walls of this building were laid in what is described as a Flemish bond with irregular joints. Before plaintiffs commenced work, or certainly before théy had proceeded far with it, there was some correspondence with the general contractors and the architects as to the manner in which the brick should jie laid. At one point in this correspondence it appears to have been contemplated that the brick should be laid with one-inch joints, but this was found to be impracticable and the final order given to the plaintiffs was to lay the brick work with regular Flemish bond, and the evidence resulting from an actual examination of the work after completion indicates very-clearly that the bed joints were not laid to one inch or to any other exact size, but were irregular, varying above and below one inch precisely as the.similar joints varied in the Bush Terminal Building, the -agreed model. The evidence does- not justify the allowance of this item.

Another item of extra work which is claimed and has been allowed is the sum of $210, for grinding brick to make the corner. The intersection of Wall street and Broadway is not an accurate right angle, and consequently it was necessary to bevel the brick at the corner of the building. To do this plaintiffs had the necessary number of brick ground. It is not apparent upon what theory tins item was allowed, or why it should have been considered extra work. Plaintiffs knew when they took the contract that the corner of the building would not form a right angle' and that they could not do their work without beveling the corner bricks, and must be deemed to have included this work in their estimate. One of the plaintiffs testifies that a foreman for the general-contractors verbally authorized the grinding of the brick, but it does not appear that this amounted to anything more than an approval of the method of beveling suggested by plaintiffs. This item should have been disallowed.

There are certain items for which the appellants counterclaimed which should have been allowed. The principal of these is a claim for erecting tile partitions in the basement amounting to $635.33. Among , the things which plaintiffs agreed to do was to erect fireproof partitions. They refused to erect them in the basement upon the' plea that their contract only applied to work above the curb level. This construction is untenable. The contract is to provide materials and perform work “ for the brick work from curb level up, terra cotta, cut granite, fireproof partitions and plastering.” The natural reading and meaning of this phrase is that the words “from the curb level up,” applied only to the brick work. It is also claimed that appellants did not give the requisite • notice of their intention to perform the work themselves. The documentary evidence is to the contrary. The foregoing construction of the contract also disposes of plaintiffs’ claim for plastering beams in vault lights in the cellar amounting to $72.87. The appellants probably should have been allowed something for removing plaintiffs’ rubbish, but the proofs do not-show -how much should be so allowed. Plaintiffs’ contract does not specifically call for cleaning up, although the duty to remove their own rubbish seems to be conceded. It appears that appellants speiit a considerable sum of money for cleaning up and removing rubbish, but it does not appear that all of the rubbish or how much of it was that which had been left by plaintiffs. The judgment appealed from must, therefore, be reversed and a new trial granted, with costs to appellants to abide the event, unless plaintiffs should stipulate to reduce the judgment by deducting therefrom the sum of $1,892.78, with interest from June 22, 1907, in which case the judgment as so modified will be affirmed, without costs to either party.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellants to abide event, unless plaintiffs stipulate to reduce judgment as stated in opinión; in which event judgment as so modified affirmed, without costs. Settle order on notice.  