#### Luke A. Burke et al., Respondents, *v.*The Educational Alliance, Appellant.

(Supreme Court, Appellate Term,

March, 1898.)

Contracts — Acquiescence in delay, after the time fixed for completion.

*Semble,*that 'where time is not of the essence of a contract, the assent of owners to an entire performance of a contract, after the day fixed for completion, precludes them from defeating an action for the contract price.

Appeal by the defendant from a judgment of the District Court in the City of New York, for the ninth judicial district, rendered in favor of the plaintiffs by the justice thereof, without a jury.

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

Benjamin Tuska, for appellant.

Cromwell G. Macy, for respondents.

Giegerich, J.

This action is founded upon a contract for work, labor and services, and materials furnished in the construction of a roof garden on the building known as the Educational Alliance at the corner of East Broadway and Jefferson street, in the city of New York. The defendant seeks a reversal of the judgment solely upon the facts, there being no error of law charged. The main questions of fact presented for solution in the court below arose out of two counterclaims interposed by the defendant; one for $400, damages, claimed to have been sustained in consequence of plaintiffs’ alleged failure to properly construct and adequately cover or protect the openings made by them in the course; of their work, and the other for $14.50, the alleged reasonable value of certain spruce planking and a step-ladder, claimed to have been borrowed and taken by the plaintiffs from the defendant for the purpose of said work,, and not returned, although duly demanded. The testimony relative to these subjects was conflicting, and a finding either way would have been warranted. The justice allowed the defendant $14.50 and gave judgment in favor of the plaintiffs for the difference. He had the witnesses before’ him, observed their manner of testifying, and, therefore, was undoubtedly better *164able to judge of their credibility and of the weight to be given to their testimony, than is this Appellate'Court, and, hence, we see ño reason for disturbing his conclusion in the absence of the elements which are requisite to a review of -the facts. Lynes v. Hickey, 4 Misc. Rep. 522.

There was also litigated upon the trial, but not argued upon this appeal, the question whether the- plaintiffs performed the contract within the specified time. The testimony adduced on the part of the defendant tended to show completion subsequent thereto, while according to that presented on behalf of the plaintiffs, the work was practically finished by the day designated. No claim, however, seems to have been made upon the trial f of-damages by reason -of such delay, if any, in completion. Moreover* the evidence shows that the plaintiffs, with the assent of the defendant* proceeded, after the day designated, to complete the contract, and time not appearing to be of the essence of this contract, such claim alone, even if urged, cannot defeat a recovery of thé contract price. Close v. Clark, 16 Daly, 91.

For these reasons, to my mind, the judgment should be affirmed, with costs. ' -

Beekman, P. J., and Gildersleeve, J., concur.

Judgment affinned, with costs..