
    WASHBURN v. DETTINGER.
    (Supreme Court, General Term, Third Department.
    February 13, 1894.)
    1. Building Contracts—Completion by Owner—Liability of Contractor.
    The owner of a building notified the contractor that if he did not complete it he (the owner) would, at the expiration of three days, complete it himself. The contractor informed the owner that he would proceed as soon as he could obtain certain materials. Afterwards he notified the owner that he could not secure the materials, but that, if the owner could get them elsewhere, he would send some men to finish the. building. Held, that the contractor remained in charge of the building, and was responsible for its proper construction.
    2. Same—Termination of Contract.
    Service of notice on the contractor by the owner, according to the provisions of the contract, that the owner will complete the work, does not of itself terminate the contract, so as to relieve the contractor from responsibility for the proper execution of the work,
    'Appeal from judgment on report of referee.
    Action by Hiram L. Washburn, Jr., as receiver of the.property of Peter Kalteux and John La Grange, against Andrew Hettinger, to recover a balance alleged to be due for the construction of an ice house for defendant. There was a judgment in favor of plaintiff for $3,503.32 damages and $383.79 costs, and defendant appeals. R6Y6rS6(l
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    W. Frothingham, (C. J. Buchanan, of counsel,) for appellant.
    L. Hotaling, (E. Countryman, of counsel,) for respondent
   HERRICK, J.

The plaintiff, as receiver of the property and effects of Kalteux and La Grange, brings this action against the defendant upon a contract made by the said Kalteux and La Grange in November, 1875, for the construction and erection by them of an ice house for the defendant. The contract price thereof was $6,000. Kalteux and La Grange proceeded to erect said ice house, and received $4,000 thereon. On or about the 21st of February, 1876, it was mutually agreed, by paroi, that further work upon said ice house should be suspended until the opening of navigation on the Hudson river in the spring. The referee to whom the case was referred finds that, at the time of such suspension of work, there remained, of work and material to be done and furnished, the following:

“About twenty-three cords of sawdust; materials for constructing six windows; materials for inside doors; materials to replace tie beam; materials for repinning; the necessary labor of filling in sawdust; completing French windows; making inside doors; scarfing and pinning the beams; repinning building; hanging and trimming outside doors.’’

That, prior to the suspension of such work, the defendant had partially filled said ice house with ice, and subsequently placed more therein, and that, at the time of the falling of the house, as hereinafter stated, it was more than half filled with ice. Some time in the early part of April the defendant served notice upon Kalteux and La Grange that they must complete said ice house, or, in default thereof, that, after the expiration of three days from the time of said service, he (the defendant) would complete said ice house, and deduct the amount of the expense of so doing from the amount unpaid of the contract price for the erection thereof. That, a few days afterwards, (the referee finds more than three, but how many does not appear,) but on the 16th day of April, said ice house fell. The referee has found that it would have cost $300 to do the work and furnish the materials left undone and unfurnished, as hereinbefore specified. He reported in favor of the plaintiff in the sum of $1,700, with interest thereon, amounting in all to $3,481.87, for which amount judgment was entered against the defendant. The defendant appeals from the judgment, and brings up for review many exceptions to the findings and refusals to find of the referee, both upon questions of fact and law.

After a careful review of the evidence in this case, I cannot resist coming to the conclusion that the building was improperly constructed, and that it fell in consequence of defective construction, although the referee has found “that it does not appear what caused the ice house to fall.” I think the learned referee erred in refusing to find, as requested by the defendant, “that said building was not constructed in a good and workmanlike manner, and was not, at the time of the commencement of this action, substantially completed.” It appears in the evidence that the building was not properly pinned together; that the wooden pins used were not of the kind of wood proper to be used for such purposes, being brittle and easily broken; that, in a number of instances where such pins were attempted to be driven in, they broke off, and other pins were not put in their places; that one of the tie beams was not properly fastened, so that, for some days before the building fell, it became drawn apart from its fastening; and there were -other minor defects, as the result of which the building was not ■solid,, but vibrated in the wind. The only architect—a man of high standing in his profession—called as a witness testified that the workmanship was bad. The effect of this- is sought to be .avoided, however, upon the ground that, the defendant ‘having served notice upon the contractors that, if they did not complete ■said building, he (the defendant) would, at the expiration of three days, go on and complete it himself, and the contractors not complying with said notice, the defendant thereafter became responsible for the building, and that it was his business to complete it, and in a good and workmanlike manner; and that, if he did not •do so before the building fell, the loss was his, and the only relief that he is entitled to is to deduct the amount of money that it would have been necessary to expend to complete the building in .a good and workmanlike manner, according to the terms of the ■ contract, from the contractor’s price. There is evidence tending to show that, after the service of the notice, one of the contractors ■'informed the defendant that he would go on with the completion ■of the building as soon as he could obtain the sawdust, and subsequently notified him that he could not procure it, but that, if he ■(the defendant) could get it elsewhere, he would send a force of men to put it in. If this story is true, (and the preponderance -of evidence seems to be that it is, although the referee has found to the contrary,) then the contractors still remained in charge of finishing the construction of the building, and the defendant did ■not assume the responsibility of it. Furthermore, not only had the contractors omitted the doing of some things that were necessary to be done to complete their contract, but it appears, as already stated, that some of the work that they had done was defectively done; so that, if it is to be assumed that the defendant, in serving notice that he would go on and complete the building ¡himself, thereby assumed the responsibility of doing the work that, under the contract, remained to be done' to complete it, he did not .assume the responsibility for bad or defective work performed by the contractors prior to the time they ceased work upon the building. Serving notice upon the contractor by the owner, in accordance with the provisions therefor in the contract, and even proceeding, pursuant to such notice, to go on and do the work, does not terminate the contract. Murphy v. Buckman, 66 N. Y. 297; Taylor v. Mayor, etc., 83 N. Y. 625; Crouch v. Gutmann, 134 N. Y. 45, 31 N. E. 271. The contract being still in existence, and the contractors not being released from its terms and conditions, they are responsible for any defective work done in performing it. 'To hold to the contrary would be to sustain the proposition that where there is a provision in the contract providing that, in case ■of delay to complete, the owner may go on and do so, the contractor, by abandoning his contract, and thus compelling the owner to complete it, may escape liability for defective work done by him, and throw it upon the owner. I do not think that this proposition can be successfully maintained. -Heither, in a case like this, can the owner be made whole by deducting from the contract price the amount of money that it would have cost to have made a perfect job. The expense of properly securing tie beams, of putting in good pins, and of taking out defective ones and replacing them by perfect ones, is trivial compared with the injury resulting from the work having been neglected or improperly done. The expense of doing that which was left undone, and of doing oyer again properly that which was defectively done, is unimportant,. compared with the loss occasioned by such work not having been done, or properly done, in the first instance. Neither does it appear in this case that the work that was neglected to be done, or that which was defectively done, was such as could have readily been discovered by the owner; and the lapse of time between the giving of the notice that he would complete the work himself and the falling of the building does not appear of sufficient length to hold the owner responsible for not having discovered these defects in the building, and to have remedied them in time to prevent any evil results. To enable the contractors, or the plaintiff standing in their place, to recover for the work that was done by them, it was necessary for them to establish that such work as was done by them was done in a good and workmanlike manner, and that, I think the evidence shows, there has been a failure to establish; and, for the error of the referee in refusing to so find, the judgment should be reversed, the referee discharged, and a new trial granted, with costs to abide the event. All concur.  