#### The People of the State of New York, Plaintiff, *v.*The Metropolitan Surety Company, Defendant. In the Matter of Albert Fuchs, Claimant, Appellant, *v.*The Metropolitan Surety Company (John F. Yawger, Receiver), Respondent.

Third Department,

July 1, 1915.

Contract — guaranty and suretyship—failure of building contractor to complete portion of work — when surety not liable for failure to complete entire building within time specified.

A contract relating to the furnishing of work and materials for the construction of only a portion of a building, the rest of the work being let to various contractors, which provided that the work should be done so that the entire building shall be completed within a certain day, did not make time the essence of the contract, to the extent of making the surety of such contractor liable to the owner because the entire building was not completed by the day set, although the contractor defaulted before said date in fulfilling his part of the contract. The failure to complete the entire building may, under the circumstances, have been due to the fault of the other contractors, and for this the surety was not liable.

Appeal by the claimant, Albert Fuchs, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 12th day of September, 1914, confirming the report of a referee and overruling and disallowing claimant’s exceptions thereto.

*Hirsh & Newman [Benjamin Reass*and *Max Leff*of counsel], for the appellant.

*Edward R. Finch [Francis X. Brosnan*with him on the brief], for the respondent.

Per Curiam:

The surety company is in liquidation, and the appellant has filed a claim herein in the sum of $27,000 upon a bond issued by the Metropolitan Surety Company, claiming that by reason of the default in the condition of the bond he has been damaged in an amount in excees of the entire amount of the bond. The claim was sent to a referee for adjustment. No evidence was *616taken before the referee; depositions were taken in Chicago and submitted to the referee, who made a report, accompanied by an opinion, in which he allowed the claimant the sum of $5,352.91, with interest. The claimant filed exceptions to the report, claiming that further items of damage should have been allowed. Upon the receiver’s motion to confirm the report the court at Special Term overruled the exceptions and confirmed the same, and appeal comes here from this order.

On the 6th day of June, 1906, the Metropolitan Surety Company, as surety, undertook to guarantee the contract of J. W. Johnson &Co. for the furnishing of certain work and materials in the construction of certain buildings at the corner of Sheridan road and Clarendon avenue, Chicago, on lands owned by the claimant. The contract provided that J. W. Johnson & Co. should furnish'“ all the materials and perform all the work for the mason work, cut stone work and cement concrete work ” for the buildings referred to in the contract, at the agreed price of $27,000, and the work was to be done “so that the entire buildings shall be completed ready for occupancy on or before the 15th day of September, 1906.” It appears to be conceded that there was a breach of this contract, J. W. Johnson & Co. abandoning the work when it was about two-thirds completed on the 14th day of August, 1906, and at a time when it was impossible to complete the buildings within the time named in the contract. Mr. Fuchs, the claimant, took up the work under the provisions of the contract, and completed the buildings some time in the early part of the following year, and he now seeks to hold the surety company for the damages which he claims to have sustained by reason of the breach of the contract.

Under the first point the appellant contends that the referee erred in disallowing the item of damage resulting because J. W. Johnson & Co. did not perform the contract within the time agreed. We are unable to agree with this contention. The contract was not drawn with that degree of particularity which might be expected if time was of the essence of this particular agreement. There were a large number of contractors for particular portions of this work; the firm of J. W. Johnson & Co. was to “provide all the materials and perform all the *617work for the mason work, cut stone work and cement concrete work,” and this was to be done “so that the entire buildings shall be completed ready for occupancy on or before the 15th day of September, 1906, ” but there was nothing in the contract which provided just when this work should be done, or at what stages of the contract the other work should be introduced. The work was two-thirds done when it was abandoned one month before the time mentioned for completion, but there is no evidence that any of the other contractors had been delayed or that they would have completed their work by the fifteenth day of September if J. W. Johnson & Co. had been more forward with theirs. Clearly J. W. Johnson & Oo. did not become insurers of the work of other contractors. The fair construction of the contract is that it is to be performed in such a manner as not to delay the other contractors in performing their part within the time provided for the completion of the building, and the mere testimony of builders that it would require a certain length of time to complete the buildings after the fourteenth day of August, when the work was abandoned two-thirds done, is not sufficient to charge the surety for damages for failure to complete the building on time. It was necessary to show that the failure of J. W. Johnson & Oo. to progress the work had been the proximate cause of the failure to complete the building; that their failure had prevented the completion of it on time. So far as appears, the delay in completion may have been due to the default of other contractors equally with J. W. Johnson & Co.; there is no proof that any of them were hindered or delayed when they were ready to proceed, and we agree with the learned referee that damages based upon the evidence in this case would be entirely too speculative to be justified.

The claim for damages, alleged to be due to a failure on the part of J. W. Johnson & Oo. to furnish an artificial stone of the quality shown in sample, is without merit. The testimony of entirely reputable men shows that the material is of good quality, and there was an entire failure on the part of the claimant. to produce evidence that the materials furnished were not up to the standard of the sample. The claimant, who was furnished one-half the sample, could not produce it upon *618the trial, and the alleged defects were so trivial that even the claimant was not willing to testify that they in any manner lessened the rental value of the premises.

A careful examination of the evidence convinces ns that the errors to which the learned referee refers as being possible, are such as might be complained of by the respondent rather than the appellant, and that the case has been disposed of with a close approximation to justice.

The order appealed from should be affirmed, with costs.

Order unanimously affirmed, with costs.