
    Charles Dunne, Appellant, v. Josephine R. Robinson, Respondent.
    (Supreme Court, Appellate Term,
    April, 1907.)
    Bill of particulars — Effect of bill — Effect as limiting the party’s claim — Entirety of contract.
    Contracts — Performance of contracts: Sufficiency of performance in general — Contracts with architects; Rights accruing on partial performance of contract — Waiver of failure to fully perform.
    .Where, in an action to recover a balance due for services as an architect, the bill of particulars contained but a single item for plans, specifications, applications and permits for the defendant's premises, it is manifest that plaintiff elected to make the drawing of the plans an entire contract; and it appearing from the testimoñy that a set of plans for a fifty-foot building was prepared as a substitute for an old set for a twenty-five-foot building, no recovery may be had for preparing the first set though, in response to an inquiry by the trial justice, counsel stated, contrary to the bill of particulars, that plaintiff’s claim was for drawing two sets of plans.
    Where defects and omissions run through the entire system of plans furnished by an architect so that they are useless for the guidance of builders, the architect is not entitled to any compensation therefor.
    Payment on account of the alleged services made without knowledge of the defective character of the plans did not constitute either an acceptance of the plans or waiver of defects.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of the defendant, after a trial before the court, without a jury.
    Kramer, Bourse & Koch, for appellant.
    Samuel H. Wandell, for respondent.
   Giegerich, J.

The action is to recover the sum of $500, a balance claimed to be due the plaintiff for services as an architect in preparing plans for a store and loft building to be erected upon the defendant’s land, situate at Ros. 18 and 30 West Twenty-first street, in the borough of Manhattan. The pleadings were oral and the defendant pleaded a general denial, payment and a breach of contract. The plaintiff was at first employed to draw plans for a twenty-five-foot building; but the defendant, having acquired title to the adjoining parcel, later retained him to prepare plans for a larger building, of fifty feet frontage. It is claimed by the plaintiff that compensation for preparing the set of plans for the twenty-five-foot building should have been awarded by the trial justice. In support of such contention plaintiff urges that it was stated by his counsel upon the trial, in response to an inquiry by the trial justice, the claim was for drawing two sets of plans, but this theory of the action is contrary to the bill of particulars furnished by the plaintiff on the defendant’s demand, and therefore it cannot prevail. Dananberg v. Reinheimer, 24 Misc. Rep. 712. The bill of particulars reads, as follows:

“ June 20, 1906. Plans, specifications, applications and permits for premises 18-20 West

21st St.....'____;..................... $600 00

Received on account...................... 100 00

“ Balance........................ $500 00 ”

There is thus no claim for preparing two separate sets of plans, nor are particulars furnished of two items. Moreover, the complaint, which, as seen, was oral, was stated to be for a “ balance due for services rendered as architect,” thus distinctly showing that recovery was sought on only one causa of action. The plaintiff introduced in evidence but one set of plans and they related to a fifty-foot building, and it is apparent from the evidence that such plans were prepared and filed in substitution for the old plans for the twenty-five-foot building. In view of all these circumstances, as well as plaintiff’s failure upon the trial to move for judgment in his favor for preparing plans for a twenty-five-foot building, it is manifest that he elected to make the drawing of all the plans one transaction, in other words, an entire contract. The case having been tried on that theory, it is now too late for the plaintiff to claim that he is entitled to compensation for preparing plans for a twenty-five-foot .building. Harris v. Gunn, 37 Misc. Rep. 796, and citations; Dananberg V. Reinheimer, supra. There was ample evidence -introduced upon the trial to warrant the justice in finding that the plans so prepared and put in evidence by the plaintiff were defective and utterly unfit for use. Ho dimensions were noted on them, and the figures and scales did not correspond, and they were full of omissions and inaccuracies. The plaintiff himself admitted that his plans were incomplete, and it appears from the testimony of expert witnesses called by the defendant that such plans could not be used by a builder. The plaintiff further admitted that this was his first large job; that he had previously drawn plans for alterations only and had never drawn plans from which a building was constructed. It furthermore appears from the evidence that he was also engaged in the iron business; that he had lately been an inspector in the building department; that he was not a member of the Institute of Architects, and that he had had but very slight experience in -architectural work. In volume 6 of Cyclopedia of Law and Procedure (p. 34), it is stated that: “ The undertaking of an architect implies that he possesses skill .and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; accordingly he must exercise in any given ease his skill and ability, his judgment and his taste reasonably and without neglect.” In the same work (at p. 35) it is stated that, if the architect prepares specifications, they should be in detail. It is urged by the plaintiff, however, that, although the defendant may have shown that by reason of the plaintiff’s lack of skill in the preparation of the so-called fifty-foot plans the same were defective, such defects could mot defeat all recovery by him in this action. Hubert v. Aitken, 5 N. Y. Supp. 840, is cited in support of the position so contended for, but that case is clearly distinguishable from the present one. There the action was for drawing plans and supervising the erection of a building, and the court held that with regard to the plans the contract was fully completed. Drawings for the whole building were furnished, and it was actually constructed in accordance therewith. After the building was finished, it was discovered that chimney flues connecting with the boiler flues were not enough for the purpose they were designed. The flues, however, were not omitted from the plans. On the contrary, they were set out in detail. The court stated that it could not be said that the plaintiffs did not completely perform their contract, although they performed it negligently. In the earlier report of the same case (2 N. Y. Supp. 711), it was held that the cost of correcting the defect in the chimney, discovered after construction, should be deducted from the architect’s demand, and this view was sustained in the later decision of the case. 5 N. Y. Supp. 713. It is . difficult to construe such a decision as an authority for the argument of the plaintiff that plans so defective and incomplete as these were shown to be, and containing such omissions of necessary information that they could not be used by a builder, should be paid for pro rata, in the proportion that defective plans bear to perfect ones. The true rule would seem to be laid down in Moneypenny v. Hartland (1 Car. & P. 352, also 2 id. 378), and cited with approval in the first report of Hubert v. Aitken, supra, where a surveyor’s estimates for work were grossly incorrect and it was held that he was not entitled to recover for his services. The case of Woodward v. Fuller, 80 N. Y. 312, likewise cited by the plaintiff, is also distinguishable. There, the plaintiff substantially performed a contract for alterations of a house, but some of the specifications were not complied with, in slight particulars, all such defects being easily remedied; and it was held that the plaintiff could recover the contract price, less damages, the court expressly stating that the rule would be otherwise if the defects pervaded the whole work and were essential, whereby the object of the parties might be defeated. As above shown, the defects and omissions complained of in the present case run through the entire system of plans furnished by the plaintiff, so that they were useless for the guidance of builders. Under the rule above stated, the plaintiff is not entitled to any compensation therefor. While it appears from the evidence that the defendant paid $100 on account of the plaintiff’s alleged services, it was also shown, without contradiction, that such payment was made without knowledge of the defective character of the plans and hence there was no acceptance or waiver of defects. Cahill v. Heuser, 2 App. Div. 292; 6 Cyc. 69.

I am of opinion that the justice made a proper disposition of this case, and it should, therefore, be affirmed, with costs.

Gildersleeve and Erlanger, JJ., concur.

Judgment affirmed, with costs.  