
    Frank Schulze, Appellant, v. Hattie J. Farrell, Respondent.
    Second Department,
    December 30, 1910.
    ' Pleading — indebitatus assumpsit — opening of counsel not destroying cause of action — delayed performance of contract.
    The complaint in an action on indebitatus assumpsit to recover for a balance due on a building contract should not be dismissed because the plaintiff’s counsel on the opening stated that the contract called for the completion of the work on a certain date, with a per diem penalty if a longer time was taken, and that performance by the plaintiff was delayed but that the building was finally
    
      completed as certified by the architect so that the plaintiff was entitled to a balance due.
    Under such complaint the fact that the' plaintiff did not'complete the work within the stipulated time did not necessarily show that the contract had not been performed.
    Under a count of indebitatus assumpsit the plaintiff may recover for work clone under a contract not under seal unless he failed to fulfill' the contract.
    Although the contract contained a provision for damages to the defendant in case of delay in performance beyond a specified date it does not follow that there might not be performance as of a later date.
    Under such complaint the contract may be used on trial to determine the rights of the parties.
    ' Thomas, J., dissented.
    Appeal by the plaintiff, Frank Schulze, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of May, 1910, as amended by an order entered in said clerk’s office on the 18th day of-May, 1910, upon the dismissal of the complaint by direction of the court upon the opening at the Kings County Trial Term.
    
      Frederick W. Sparks, for the appellant.
    
      Abram, I. Elkus [Herrick McClenthen with him on the brief], for the respondent.
   Jenks, J.

The - plaintiff declared upon indebitatus assumpsit. On the opening his counsel said that the action was to recover a balance on a building contract, which contained provisions that the work was to be completed on the 1st of January,. 1907, and that if the plaintiff did not finish at that time he was to pay $50 for each day “ he ran over the contract.” He further said that the plaintiff was delayed so that the time was exceeded, that the building was finally completed, that the architect so certified; that,.under the terms of the contract, the plaintiff was entitled to $3,800 balance due; that Mr. Farrell demurred to the demand and wanted to pay less, and “ claims to deduct from the $3,800 not only, the full amount, but ' claims a counterclaim of $2,200. He wants to recover * * * fifty dollars a day for 120 days over time. I take it that will be the real question in the case, whether he is entitled to that or not.” Thereupon, on the opening of counsel,” the defendant moved to dismiss the complaint on the ground that the cause of action stated by the counsel in his opening is entirely different from that stated in the complaint.”' This motion was granted, the plaintiff was dismissed, and he now appeals from the judgment. The count of indebitatus assumpsit sufficed to recover for work done tinder.a contract not under seal, unless the plaintiff had failed to fulfill the contract. (Hosley v. Black, 28 N.Y. 438 ; Farron v. Sherwood, 17 id. 227; Higgins v. Newtown & Flushing Railroad Co., 66 id. 604; Hurst v. Litchfield, 39 id. 377; Publishing Co. v. Steamship Co., 148 id. 39.) The fact that the plaintiff did not complete the work by the stipulated time did not necessarily show that the contract had not been performed. That would depend upon the construction of the contract by the parties thereto. (Anson Cont. [2d Am. ed.] 344.) If the contract provided for liquidated damages for non completion within the time limit, it could be held that this provision contemplated performance at a later date than the stipulated period (Murphy v. United States Fidelity Co., 100 App.Div. 93), and hence notwithstanding the vitality of the provision for damages, the plaintiff could have performed his contract by a later date. In Lennon v. Smith (124 N.Y. 578) the contract contained a provision for a penalty for time delay, and the defendant made claim therefor; the court said that the defendant could not repudiate the contract and at the same time rest a claim for damages upon it for the reason that in such case the contract is permitted to remain operative for the remedy and relief of both parties, and that any other view might work injustice. Under the complaint, the contract could be used on the trial to determine the rights of the parties.' (Hartley v. Murtha, 5 App. Div. 408, citing Hogan v. Laimbeer, 66 N.Y. 604; Shirk v. Brookfield, 77 App. Div. 299; Boyd v. Vale, 84 id. 416.) I do not gather from the opening that the plaintiff abandoned his theory of action. He referred to the contract that had existed between the parties, stated the particulars of the claim and of the opposition thereto; and his position was that the contract had been performed and that naught remained, so far as the plaintiff’s claim was concerned, but to recover the consideration therefor. The practice of the defendant, although of course recognized, is perilous, and the basis thereof is clearly defined. (Hoffman House v. Foote, 172 N.Y. 348.)

I think that the plaintiff’s exception was well taken and that the judgment must be reversed and a new trial must b’e granted, costs to abide the event.

Hirschberg, P. J., Woodward and Rich, JJ., concurred; Thomas, J., dissented. ■

Judgment reversed and new trial granted, costs to abide the event. '  