
    James Cartwright, Resp’t, v. The Village of Mount Vernon, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    1. Municipal cobpobation—Contract—Liability of cobpobation—Acceptance of work.
    In an action to recover a balance due under a contract for excavating and grading a street where the evidence showed that the street committee, after personal inspection, aided by their engineers, under whose instructions the work was done, accepted the work as complete, a verdict of the jury for the whole sum claimed will not be disturbed on appeal.
    3. Same—Appeal—Exclusion of evidence—Where no injury to defendant.
    Where the recovery was not had upon the ground of estoppel but upon the ground of complete performance, the exclusion of evidence that the village board rescinded its resolution accepting the work does not prejudice defendant.
    Appeal from a judgment recovered by plaintiff against the defendant upon the verdict of a jury at a circuit court of Westchester county and from an order denying defendant’s motion for a new trial.
    . Action to recover a balance due under a contract for excavating and grading Franklin avenue, in the village of Mount Vernon.
    
      Joseph S. Wood, for app’lt; Martin J. Keogh, for resp’t.
   Pratt, J.

The question tried before the jury was whether the plaintiff had substantially performed his contract.

e They were charged that if the contract was not substantially performed, the plaintiff could not recover. If it was, in substance, completed, but some smáll matters remained undone, they were instructed that they might find for plaintiff and make such deduction from the contract price as, would be equal to the

Upon those instructions the jury found a verdict for the whole sum claimed. To do that they must have found that the contract was fully completed. We think they were justified in so doing.

The .committee in charge of the work went upon the ground in company with their engineer under whose instructions it had. been executed, and after personal inspection, aided by the engineer’s advice, accepted the work as complete. That was the cogent evidence of completion.

The fact that the engineer and some members of the committee, afterwards expressed an opinion that the work was not complete,1 does not conclude the contractor.

No testimony was excluded that would have tended te show non-performance of the contract.

Tbe court refused to allow evidence to be given that the village board rescinded their resolution accepting the work.

The recovery did not go upon the ground of any estoppel upon which that evidence might possibly be competent; but upon the ground of complete performance, upon which; if admitted, it would have had no weight. Its exclusion was,, therefore, no-injury to defendants.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  