Rochkind v. Jacobson

Appellate Division of the Supreme Court of the State of New York

Decided May 1, 1908

Appellate Division of the Supreme Court of the State of New York · decided 1908-05-01

Appeal by the defendant, Judah Jacobson,,from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of March, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term, certain issues of fact having been submitted to a jury.

Decided 1908-05-01

Hooker, J.:

¶1The 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.

¶2The judgment should be reversed and a new trial granted, costs to abide the event.

¶3Woodward, Jenks and Miller, JJ., concurred.