Vogel v. Friedman

34 Misc. 775, 68 N.Y.S. 820

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1901
• Status: Published

Opinion

O’Gorman, J.

The omissions from the contract were requested by the defendants’ architect with the defendants’ knowledge, and as the case stood when the plaintiff rested, the only question for determination was what reasonable deduction should be made therefor from the contract price. Attention is called to one or two slight omissions not authorized by the architect, but, as to these, the plaintiff very properly invokes the rule that the right to enforce a contract will not be defeated by reason of inadvertent, trifling and unimportant omissions. A literal compliance as to all details is not necessary. A substantial performance will support a recovery, and, in such a case, an allowance should be made to the defendants to cover any slight damage they may have suffered by reason of the plaintiff’s failure to strictly perform the contract in every detail. Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N. Y. 488.

It was, therefore, error to dismiss the complaint, and the judgment must be reversed.

Andrews, P. J., and Blanchard, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.