Dennison Const. Co. v. McKenna

• Decision Date: 13 February 1912
• Citation: 204 N.Y. 404,97 N.E. 859
• Parties: DENNISON CONST. CO. v. McKENNA et al.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 404

97 N.E. 859

DENNISON CONST. CO.

v.McKENNA et al.

Court of Appeals of New York.

Feb. 13, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Dennison Construction Company against Patrick H. McKenna and others. From a judgment of the Appellate Division (129 App. Div. 600,113 N. Y. Supp. 1071) modifying a judgment of the Special Term, defendants McKenna and Wood appeal. Both judgments reversed, and new trial ordered.

This action was brought to foreclose a mechanic's lien filed by the plaintiff as contractor against certain premises belonging to the defendant Manneschmidt and the complaint is in the form usual in such cases. The owner answered, alleging, among other things, that the plaintiff failed to perform the contract entered into between them for the construction of a building on the premises in question in many respects, whereby she sustained damages to the amount of $4,453 for which sum she demanded judgment against the plaintiff. A reply was served. The answer of the defendants McKenna and Wood is not printed in the record, although it is stated that they served one, appeared by counsel upon the trial, and without objection from any party furnished evidence tending to show that they, as subcontractors, performed work and furnished material worth $1,254.44 in erecting the building. No part of this sum has been paid, and they filed a lien therefor in due time and form.

The trial court found, in substance, that on the 30th of January, 1906, the plaintiff entered into a contract with the defendant Manneschmidt whereby it agreed to furnish the materials, do the work, and erect a brick dwelling for her according to certain plans and specifications. In consideration thereof, she agreed to pay the plaintiff the sum of $11,800 in five payments as the work progressed; the fourth and fifth being set forth as follows: ‘Fourth payment: When standing trim in place, stairs up and priming painting done, including roofs, $3,500. Fifth payment: When all is completed, according to this contract and accompanying specifications, less cost of total brick furnished by owner, $2,600.’ Among the provisions of the contract were the following:

‘Art. 5. Should the contractors 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 refusal, neglect or failure being certified by the architects, the owner shall be at liberty, after three days' written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractors for the said work and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractors; but if such expense shall exceed such unpaid balance, the contractors shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties. * * *

‘Art. 10. It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.’

The trial court further found that the owner made the first, second, and third payments mentioned in the contract, amounting to the sum of $5,700; that on June 30, 1907, the plaintiff demanded the fourth payment, but the owner refused to make it; ‘that on the 5th of July, 1907, the plaintiff ceased furnishing materials and performing work under the contract, and refused to perform any further work or furnish any other materials, for the reason that it had not received the fourth payment of $3,500; that at the time the plaintiff demanded the fourth payment, and at the time it refused to do any further work or furnish any other materials in the performance of the said contract, the plaintiff had not performed its contract up to the period of performance which would entitle it to the fourth payment thereunder, and the work already done by it and materials already furnished were inferior and different from those called for by the contract in the following particulars.’ The findings then specified 26 separate and independent items of defective work, defective materials, and failures to comply with the plans and specifications. Some of the defects apparently could not be remedied without taking down the building or a part thereof, such as the use of 2 by 6 inch rafters instead of 3 by 6; wall plate 3 by 10 instead of 4 by 12; 1 1/4 bridging on beams instead of 2 by 3. ‘The roof had no pitch, although the specifications required it to pitch to the rear. Discolored and sappy wood was used for trim in bedrooms, although clear white wood was required. The roof sagged to the center. One of the walls of the house is at one point at least one inch off the building line,’ although ‘the specifications required the owner to furnish to the plaintiff a survey of the property on which the...