
    The City of New York, Appellant, v. Marshall C. Dexter, Respondent.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Building and construction contracts — Performance in general — Acceptance of performance — May waive forfeiture and not waive damages for defective performance.
    Where, under agreement with defendant, the city of New York constructed a gangway to a point in the North river where the water was sufficiently deep to float a bath-house maintained by defendant and also to drive piles to which the bath-house could be anchored, and where, in an action to recover the actual cost, the defense is that the work was done in an unskillful and negligent manner, and it appears that not only had defendant originally accepted the work, but, assuming that he did so in ignorance that one of the piles was defective, it appears that he, after knowledge thereof, used the gangway until the end of the season, paying rent therefor, though he was under no obligation to remain, there was a waiver of the alleged defective performance except to the extent of the damages he suffered thereby.
    Appeal by plaintiff from a judgment in favor of defendant on plaintiff’s cause of action and upon a counterclaim interposed by defendant, rendered in the Municipal Cohrt of the city of New York, second district, borough of Manhattan.
    Francis K. Pendleton (Theodore Connoly and Thomas F. Noonan, of counsel), for appellant.
    George B. Boyd (John S. C. Bailey, of counsel), for respondent.
   Greenbaum, J.

The plaintiff agreed to construct a gangway, from the street pavement at the. foot of Little West Twelfth, Horth river, in the city of Hew York to a point in the Horth river where the water was sufficiently deep to float a bath-house to be maintained by the defendant, and also to drive piles at that point, to which the said bath-house could be anchored, for an estimated sum of $300, the cost of the labor and materials to be employed in the work of construction aforesaid. The actual cost was $370.47, and there appears to be no dispute as to its reasonableness.

In an action brought by the city of New York to recover this sum, the defendant alleged that the work was done in an unskillful and negligent manner and further counterclaimed for damages sustained by reason of said unskillful and negligent way in which the work was performed.

The- alleged negligent act of the plaintiff consisted in using an insufficient number of piles and among them a defective one, as a result of which, during a terrific storm, accompanied by rain, thunder and lightning and a gale of unusual velocity, on July 2, 1903, about three weeks after the completion of the work and the attachment of the bath-house to the piles, a cluster of three piles at the southwest corner of the bath broke, among them being the alleged defective pile, the effect of the breakage being to sway the bath-house around on the chain or rope by which it was tied to the" southeast cluster of piles, which remained intact.

After the storm abated, the bath-house was restored to its original position and was tied to its new anchorage by the defendant at an expense, as found by the court in allowing his counterclaim, of $100.

The gangway was not injured nor disturbed; and the defendant continued business with his bath-house until September 9, 1903, the close of the season, and regularly paid his agreed rental of two dollars per day to the plaintiff.

It may be added that the permission or license to moor the bath-house, upon the agreement to pay the cost of the work above mentioned -and the daily rental of two dollars, was revocable at the pleasure of the commissioner of docks of the city of New York.

A second counterclaim was also interposed by for damages alleged to have been sustained by acts of the plaintiff which resulted in befouling the water of defendant’s bath-house.

It seems unnecessary to consider this counterclaim, as it was disallowed by the trial justice, who gave judgment against the plaintiff on its claim and allowed damages on the first counterclaim.

The apparently uncontradicted testimony shows that the work was done in accordance with a diagram or sketch furnished the dock department by the defendant and that it was understood that old piles were to be used, so as to cheapen the cost to defendant.

It seems unnecessary for the purposes of this appeal to advert to many other features of this case, in view of our opinion on the undisputed facts.

Defective performance may be accepted, subject to (he right of the party damnified to recover or recoup damages for the loss he has sustained by reason of it. In such case the right of forfeiture is denied the party, his right exists in the contract, and his remedy for relief rests in his assertion and proof of damages for the defective performance by the other party whose right, subject to such claim, remains effectual.” Parke v. Franco-American Trading Co., 120 N. Y. 51, 56, citing Avery v. Wilson, 81 id. 341.

Hot only had defendant originally accepted the work, but, assuming that he did so in ignorance of the alleged condition of one of the piles, he subsequently, and after knowledge of the defect, continued to use the gangway and the construction until the end of the season, notwithstanding he was under no obligation to remain.

. It seems to us that there was a waiver of the alleged defective performance of the contract by plaintiff and that justice will be done the defendant by allowing the damages found by the trial court to have been sustained by him.

As we are of opinion from the facts disclosed that no useful purpose will be served by a new trial, we have concluded to modify the judgment by granting judgment in favor of the plaintiff for the sum of $270.47, being the difference between the contract price of the work performed by the plaintiff, less the sum of $100, the damages found to have been suffered by the defendant.

As thus modified, the judgment will be affirmed, without costs in this court.

Gildersleeve and Giegerich, JJ., concur.

Judgment modified and affirmed, without costs in this court.  