Majority
p. 774RODE et al. v. AUERBACH et al. (Supreme Court, Appellate Term. May 17, 1900.)
Headnote
1. Building Contract—Time Limit—Pleading—Waiver.Where no waiver of performance of a building contract, of which time was of the essence, was pleaded, no evidence of waiver could he shown at the trial.
3. Same—Reasonable Time.
Though plaintiff, suing on a building contract, of which time was of the essence, showed a waiver of the time provision, he was not entitled to recover, in the absence of proof that the work was completed within a reasonable time.
p. 775Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.
Appeal from city court of New York, general term.
Action by Edward Rode and others against David Auerbach and others to recover on a building contract. From a judgment in favor of plaintiffs, defendants appeal.
Reversed.
Leslie, Minor & Bliss, for appellants.
Hays, Greenbaum & Hirschfield, for respondents.
From the evidence it appears that July 20, 1897, was the time fixed for the completion of the work, and that time was of the essence of the contract.' As no waiver of this time provision was alleged, none could be shown. Elting v. Dayton (Sup.) 17 N. Y. Supp. 849 . If, however, it be assumed that a waiver of strict performance as to time could be shown, evidence of performance within a reasonable time would be necessary, and there is no evidence as to the time of the completion of the work. The only witness (Edward Rode) who testified as to completion did not state the time. The record discloses no merit in the plaintiff’s claim.
The judgment should be reversed, with costs to appellant to abide the event.