Rosen v. Bonagur

143 N.Y.S. 1059

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 13, 1913
• Status: Published

Opinion

GUY, J.

The action is brought upon a mechanic’s lien for $246, filed against Bonagur as contractor and Levy as owner. Plaintiff was a subcontractor.

[1] The contract was an accepted proposal to do certain repairs for $246. No time of payment was specified. When a building contract specifies no fixed time for payment, nothing is earned until- performance is completed. Gurski v. Doscher, 112 App. Div. 345, 346, 98 N. Y. Supp. 588, affirmed 190 N. Y. 536, 83 N. E. 1125.

[2] The work was not diligently prosecuted, and the contractor gave plaintiff notice to complete it, which he disregarded, and filed a lien for the entire contract price, of which he has recovered less than a third. There is no sufficient proof of any modification of the contract as to time of payment.

There was no justification for the plaintiff’s refusing to go on with the work unless he was paid $100, which was $25 more than the court found he had earned, and was also in disregard of his agreement, in legal effect, to complete the work before receiving any payment. Plaintiff abandoned his contract without any justification. Steiger v. London, 141 App. Div. 382, 383, 126 N. Y. Supp. 256; Borkstrom v. Ryan, 138 App. Div. 185, 186, 122 N. Y. Supp. 878. Appellant then completed the work through another subcontractor, said work costing more than he had agreed to pay plaintiff.

[3] A partial recovery cannot be had under an entire contract, where it appears that there has been no substantial performance of the contract. Kimball v. Economopoulos (Sup.) 110 N. Y. Supp. 350; Hogg v. Larchmont Yacht Club (Sup.) 134 N. Y. Supp. 1079; Seligman v. Linder (Sup.) 117 N. Y. Supp. 192, 193; Enskew v. Reise (Sup.) 117 N. Y. Supp. 906.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.