Levin v. Spero — 67 N.Y.S. 931

Majority

p. 931

LEVIN v. SPERO.

(Supreme Court, Appellate Term.

January 2, 1901.)

Headnote

Contracts—Substantial Performance—Evidence.

Where plaintiff testified that he did certain repairing, for the value of which he sought to recover, and 'defendant’s uncontradicted testimony showed that the work was done in an unworkmanlike and improper manner, there was not sufficient evidence to support a finding of substantial • performance.

Appeal from municipal court, borough of Manhattan, Seventh district.

Action on contract by Morris Levin against Sarah B. Spero. Prom a judgment for plaintiff, defendant appeals.

Beversed.

Argued before TBTJAX, P. J., and SCOTT and DUGBO, JJ.

1ST. S. Levy, for appellant.

James, Scheel & Elkus, for respondent.

The plaintiff, to show performance of a contract to provide a new store front and to do certain repairing, testified that he put in the front and did the work. The defendant presented evidence that the work was done in an unworkmanlike and improper manner. This evidence was uncontradicted. To warrant the judgment, there must have been a finding of a substantial performance, and such a finding is unsupported by the evidence, in view of the fact that the plaintiff did not describe the execution of the work as workmanlike or proper. The evidence did not show that the charge for extra work was reasonable. This may,, however, be an unimportant omission, as it is not referred to by appellant.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.