
    Nelson Griffin, Resp’t, v. Henry C. Miner, et al., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed November 10, 1886.)
    
    1. Reference— Order of, unauthorized.
    An order appointing a new referee and providing that testimony taken before a former referee should be received before the one substituted, is unauthorized as far as it provides for the reception of such evidence.
    2. Same—Waiver as to provisions of order.
    By a failure to appeal from such an order, a party waives objections to its provisions.
    3. Same—Witnesses—Further examination of—Discretionary.
    Whether or not the witnesses whose testimony has been thus received shall be examined again, is a matter resting in the discretion of the referee and not reviewable.
    4. Contract—Money paid upon violated contracts cannot be set off
    against demand for money due.
    Where the plaintiff agrees to perform certain work and furnish materials for the defendants for a stipulated price, and the defendant pays a part, and subsequently the plaintiff violates the contract so that he is not entitled to recover the remainder of the money, the amount paid cannot be set off against a claim for compensation for work performed aside from the contract.
    5. Contract violated by plaintiff—When damages recoverable.
    Damages cannot be awarded for the failure to perform the original contract; if the plaintiff might recover upon it, then the amount of the damages to the defendant being less than the amount the plaintiff will be entitled to, will be applied there; if the plaintiff cannot recover, then the defendant may not have damages of him at all.
    Appeal by the defendants from a judgment directing the foreclosure of a mechanics hen entered on the report of the referee.
    
      A. J. Vanderpoel and Thomas F. Qrady, for app’lt; Abraham King, for resp’t.
   Ingraham, J.

The order of the special term entered October 28, 1884, appointing a new referee and providing that the testimony theretofore taken in the action before a former referee should be received before the substituted referee as if taken before him, was unauthorized so far as it provided that such evidence taken before the former referee should be received before the substituted referee.

No appeal, however, was taken from that order, but it appears that on meeting before the substituted referee it was stipulated and agreed by the counsel for the respective parties that the plaintiff’s attorney would produce the plaintiff in the action for further cross-examination if desired by the defendants after the defendant had closed his case, and thereupon the defendant agreed to waive all question as to the regularity of the order of reference.

By failing to appeal from the order of October 28th, and by this stipulation the defendant accepted the terms of the order, and it is too late for him now to object thereto.

It thereupon became the duty of the referee, under the order and stipulation, to receive the evidence taken before the former referee as evidence in the action. The evidence of the witnesses for the defendant having thus been taken, whether or not the referee should permit such witnesses to be re-examined was a question resting in his discretion, and except in the case of the abuse of such discretion, presents no question for review. The referee expressly held that if the witnesses offered to be produced by the defendants, were called to testify to new facts they could be sworn, but no such claim was made. Counsel for the defendants insisted on his right to give his evidence before the referee. The evidence of the witnesses being already before the referee whether or not they should be allowed to testify again, was as before stated within his discretion, and his ruling cannot be reviewed.

The referee found that on the 15th of June, 1883, a contract was made between the parties hereto whereby the plaintiff agreed to perform certain work and labor, and furnish certain materials for the defendants for the sum of $1,984; that the defendants paid to the plaintiff on account of such contracts the sum of $1,000; that the plaintiff failed to complete his contract, and that the plaintiff was not, therefore, entitled to recover for the balance due on the obligation of such contract; that the referee further found that subsequent to the making of the aforesaid contract, the plaintiff, in consideration of the sum of $120 which the defendants promised and agreed to pay, agreed to perform work, labor and furnish materials in painting the front of the building known as the Peoples’ Theatre, and the plaintiff duly performed the said contract.

The referee further finds that the plaintiff, at the request of the defendants, performed certain work and labor in addition to the contracts above specified, and said extra work labor and materials are reasonably worth the sum of $1,633.64; and that he has performed the extra work and labor and furnished the materials, and is entitled to recover from the defendants the price of $120 and the value of the extra work and materials furnished, 1,633.64, less the sum of $198.06, and orders judgment therefor.

We have examined the voluminous testimony in the case with care, and are of the opinion that there is evidence to sustain the findings of the referee. The defendant Miner was present on the premises during the performance of the contract, and the plaintiff swears that when the work was about two-thirds through, defendant Miner paid him $1.000 on account of this contract.

It was held in Woodward v. Fuller (80 N. Y., 315), that the money paid to the contractor upon the principal contract went upon that alone, and cannot be set off or applied elsewhere, and that notwithstanding the fact the contract itself was not in all respects performed, that the plaintiff may recover the reasonable value of any extra work performed by him.

There is also evidence to sustain the findings of the referee, that the work claimed as extra work was not included in the original contract, and that such extra work was reasonably worth the sum allowed by the referee therefor. We also think the referee was right in refusing to award damages for the failure to perform the original contract. As was said in Woodward v. Fuller, supra, “If the plaintiff may recover for what he did under the contract, then those damages, as they are less than the amount, that must in such a case be allowed to him will apply there. If he may not recover thereon for the lack of full performance, then the defendant may not have those damages of him at all.”

On the whole case we are of the opinion that the judgment appealed from does substantial justice, and that no error requires that it should be reversed.

Judgment should therefore be affirmed, with costs.  