#### Sarah G. Pearse, Respondent, *v.*Patrick Divver, Appellant.

(Supreme Court, Appellate Term,

June, 1898.)

Entire contract — Performance.

An accepted proposal to paint a cottage, ham, windmill, chicken-house and all other painting on the outside of a residence, and to do certain other interior painting for a gross sum stated, is au entire contract, and where the contractor has. failed to perform in certain essential particulars, his assignee can recover nothing against the owner of the property.

Appeal by the'defendant from a judgment of the Distinct Court in the City of ¡New York for the thirteenth judicial district, rendered in favor of the plaintiff for $50 damages, with costs and extra costs, by the justice thereof without a jury.

The nature of the action and the material facts are stated in the opinion.

James P. Niemann, for appellant.

Charles A. Winter, for respondent.

Giegerich, J.

The plaintiff’s complaint is predicated upon two causes of action, one, to recover a balance of $92, claimed to be due on a contract made between the plaintiff’s assignor and the defendant, and the other for $18 for extra work.

The answer denies performance of the contract; avers that the work was done in an improper and unworkmanlike manner;.alleges that the so-called extra work formed part of the work required to be performed by the contract made between plaintiff’s assignor and the defendant; and sets up a counterclaim for $150 damages, claimed to have been sustained in consequence of the alleged breach of plaintiff’s assignor. Another counterclaim is set up, which it is not necessary to-consider, in view of the conclusion reached respecting other issues presented by the pleadings.

In or about the mouth of May, 1897, the plaintiff’s assignor submitted to the defendant the following estimate:

> *“May*10,1897.

Mr. Patbiok Divveb:

Deab Sib.— Propose to paint your cottage and barn, windmill, chicken-house and all other painting on otitside at your Cedar*692hurst residence. And paint your kitchen walls and kalsom.ine kitchen ceiling and entrance ceiling and one attic-room and two 2nd story rooms and hack stairway walls. And varnish ceiling and sides of wagon-room in the ham.

Eor the sum of- One Hundred and Ninety Five Dollars and Seven 50/100 dollars added for the varnish, total $202.50/100..

> Tours truly,'

> W. S. Peabse,

> Far Rockaway.”

■The defendant testified that he unconditionally accepted the above proposal, while the plaintiff’s assignor, on the other hand, testified that before entering upon the performance of the contract, the ’ defendant waived the varnishing of the interior of the carriage-house, and the painting of a grape arbor, and that, with these exceptions, the paper writing above set forth was the final contract between the parties.

At the trial the plaintiff’s assignor, while claiming to have performed the contract, admitted his failure to paint the first story of the house, the end of the bam, chicken-house, and grape arbor, and. to varnish “ the wagon-room and blinds and boards on the back of the chicken-house; where the duck pond is.”

The testimony adduced on behalf of the defendant tended to show a failure to perform the contract in substantial and important respects, and such work as was done was finished in an improper and unworkmanlike manner. .

When both sides rested, the justice said:

“ It seems to me it is shown by the evidence that this work was not done in proper manner. The only thing is that there has been some work done that ought to be paid for.

“ The extra work I will allow, that is .$18.50, and as to the other work — I did not hear any criticism of the work on the windmill or the chicken-house. I think I ought to allow something more than was paid, but not a great deal; I will allow something like $49.50 to the plaintiff;

*“*Counsel for plaintiff.— Will your honor make it $50, as this has been an expensive proceeding, and one "in . which we ought to have costs?

“ The Court.— Judgment for the plaintiff for $50 ‘ and costs.’ ”

It requires no oitation of authorities to show, that the plaintiff, under these circumstances, cannot recover.

*693The justice having found that the contract, which was in its nature entire, in my opinion, had not-been substantially performed in its important and essential elements, could not lawfully allow any recovery thereon.

For these reasons the judgment should be reversed- and a new trial ordered, with costs to the appellant to abide the event.

Beekmae, P. J., and Geldersleeve, J., concur.

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