Rochkind v. Jacobson

126 A.D. 357, 110 N.Y.S. 583, 1908 N.Y. App. Div. LEXIS 3351

Opinions

Hooker, J.:

The action is to establish and foreclose a mechanic’s lien on real property. The complaint alleges substantial performance. The plaintiffs, had judgment. The contract price was $3,100. There has been allowed to the defendant $314 for work which the plaintiffs have not performed in order to complete the contract. This is more than ten per cent of the contract price. Waiver of substantial performance is neither plead in the complaint nor proved by any satisfactory evidence. Under ordinary circumstances, and those in the record are not extraordinary, a failure to perform ten per cent of the contract price will not admit of the claim of substantial performance.

The judgment should be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks and Miller, JJ., concurred.