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Rowe v. Gerry

98 N.Y.S. 380 Court N.Y. App. Div. Decision date 1906-04-20 English

Judges Argued before HIRSCHBERG, P. E, and WOODWARD, JENKS, HOOKER, and GAYNOR, JJ.

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p. 380
(112 App. Div. 358)
ROWE v. GERRY et al.
(Supreme Court, Appellate Division, Second Department.
April 20, 1906.)

Headnote

Contracts — Building Contracts — Substantial Performance — Actions—Issues and Proof.
Where, in an action on a building contract, plaintiff alleged performance, it was nqt essential to sustain such complaint that plaintiff prove more than a substantial performance.
[Ed. Note. — For cases in point, see vol. 11, Cent Dig. Contracts, §§ 1353, 1750.J
Appeal from Special Term, Westchester County.
Action by Edward Rowe against Isabel H. Gerry and others. From judgment for plaintiff, defendant Gerry appeals.
Affirmed.
Argued before HIRSCHBERG, P. E, and WOODWARD, JENKS, HOOKER, and GAYNOR, JJ.
Henry G. K. Heath, for appellant
J. Mortimer Bell, for respondent.

This case has been here twice on appeal from judgments for‘the plaintiff. 86 App. Div. 349 , 83 N. Y. Supp. 740 ; 109 App. Div. 153 , 95 N. Y. Supp. 857 . The complaint was to recover the final balance due on a building contract; i. e., it was for performance of the contract. The first judgment was reversed, for the reason that performance was not shown by the plaintiff, but nonperformance, and excuse therefor, whereas a recovery could be had under the complaint only for performance. The second judgment was affirmed, because substantial performance, which is performance, was shown and found by the trial court. A reargument was ordered. The learned counsel for the appellant understands that the second judgment si ~ * d have been reversed, because it was for substantial performance, which he understands from our two former opinions to be not performance, but nonperformance. We do not wish to leave any such impression as that. There is a wide difference. Substantial performance is performance, and entitles the plaintiff to recover under a complaint for performance; and especially is that so under building contracts, where some of the infinite details may be easily overlooked. Glacius v. Black, 50 N. Y. 145 , 10 Am. Rep. 449 ; Spence v. Ham, 163 N. Y. 220 , 57 N. E. 412 , 51 L. R. A. 238 . It may well even happen that the plaintiff may not know of existing omissions when he draws his complaint for performance. When such omissions are proved by the defendant, the plaintiff may recover on his complaint for performance, if they be unsubstantial, and not willful, but the cost of supplying them has to be deducted.

The judgment is affirmed.

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