Dearstine v. Dunckel

223 A.D. 795

Opinion

Per Curiam.

The house, when finished, was several inches out of plumb, through the fault of the contractors. The learned trial court found that this substantial defect had been waived by the owners. The evidence did not justify the finding. The boiler of the heating plant gave unsatisfactory service. It was not the kind specified in the contract. No explanation of this was given. Substantial compliance was not shown. (Jacob & Youngs v. Kent, 230 N. Y. 239.) The owners did not accept the work by moving into the house. (Cawley v. Weiner, 236 N. Y. 357.) The judgment appealed from should be reversed upon the law and facts and a new trial granted, with costs to the appellants to abide the event. Van Kirk, P. J., Hinman, Whitmyer, Hill and Hasbrouck, JJ., concur. Judgment reversed on the law and facts and new trial granted, with costs to the appellants to abide the event. The court disapproves of findings of fact numbered five, six, eight, nine, ten, eleven and twelve.