199 N.Y. 351, Fraenkel v. Friedmann

Citation:199 N.Y. 351
Party Name:ARMIN FRAENKEL, Appellant, v. JONATHAN FRIEDMANN, Respondent.
Case Date:October 11, 1910
Court:New York Court of Appeals

Page 351

199 N.Y. 351




New York Court of Appeal

October 11, 1910

Argued June 17, 1910.


Sumner B. Stiles and Samuel J. Cohen for appellant. Even if the plaintiff had failed to show substantial performance of his contract, yet, as the defendant, under the terms of article 5 of the contract, had served upon the plaintiff a written notice that the defendant would 'take possession for the purpose of completing the work included in the contract' himself, and would 'employ such persons and provide such materials therefor' as he should 'deem proper and necessary, ' and introduced evidence upon the trial that he had employed other contractors to complete the work which he claimed the plaintiff had not performed, and as the unpaid balance still due under the contract exceeded the 'expense incurred by the owner in finishing the work' the plaintiff was entitled to recover 'such excess, ' and it was reversible

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error to dismiss the complaint. (Van Clief v. Van Vechten, 130 N.Y. 571; Weeks v. O'Brien, 141 N.Y. 199; Ringle v. W. I. Works, 149 N.Y. 439; Early v. O'Brien, 51 A.D. 569; Smith v. Wetmore, 167 N.Y. 234.)

Laurence Arnold Tanzer for respondent. There is no basis for a recovery of a balance under the provisions of article 5 of the contract. (Woodhull v. Rosenthal, 61 N.Y. 382; Thomson v. Bank of North America, 82 N.Y. 1; Burnap v. National Bank, 96 N.Y. 125; Travis v. Travis, 122 N.Y. 449; Ostrander v. Hart, 130 N.Y. 406; Sherman v. Foster, 158 N.Y. 587; Ogden v. Alexander, 140 N.Y. 356.)


This is an action to foreclose a mechanic's lien. The plaintiff entered into a contract with the defendant to do certain work, and furnish certain materials, for which he was to be paid $1, 050. There was a delay in carrying out the contract, and the time in which it was to be completed was twice extended by the defendant. The defendant claims that it was not then completed. The architect refused from time to time to give the plaintiff a certificate showing that he had partially completed his contract according to the terms thereof, and when the plaintiff asserted that he had fully completed the contract, and asked for a final certificate from the architect, it was refused. The defendant had, however, without the architect's certificate, given the plaintiff $300 on account. Subsequent to the extended time for the completion of the contract the defendant terminated the plaintiff's employment. Thereafter a mechanic's lien was filed, upon which, about a year thereafter, this action was brought and the plaintiff claims that the defendant is indebted to him in the sum of $750, being the amount agreed to be paid pursuant to the contract, less the payment made thereon.

The court before whom the action was tried made findings of fact by which it appears that the plaintiff did not perform the work and furnish the materials required to be performed and furnished under the contract, either wholly or substantially,

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and that he deviated from the terms of the contract in many particulars, some of which are stated in the findings. Judgment was directed dismissing the plaintiff's complaint. From the judgment entered thereon an appeal was taken to the Appellate Division, where it was affirmed by a divided court. The plaintiff insists that there is no evidence to sustain the material findings of fact relating to his failure to substantially perform his contract. It is unnecessary to review the evidence relating to such findings or to determine the merit of the plaintiff's claim in view of the conclusion we have reached upon another branch of the case.

In the contract is a provision as follows:

'Art. V. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such...

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