#### Rudolph Gersmann, Respondent, *v.*Mary Walpole, Edward J. Farrell and William B. O’Mally, Appellants.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

Mechanics’ liens — foreclosure of — written contracts — no recovery on quantum meruit — substantial performance.

Counterclaim — for breach of contract — pleading — right to jury trial. Appeal — from judgment rendered in action by defaulting defendants — dismissal of.

An action to foreclose a mechanic’s lien, where an undertaking had been given to discharge the same and where the sureties on the undertaking were parties defendant, is triable by the court without a jury.

The plaintiff in such an action cannot recover on *quantum meruit*under a written contract without proving substantial performance.

. Excuses are not a substitute for substantial performance, conclusions as to performance are not proof thereof, and proof of substantial defects, omissions and violations of the contract will defeat a recovery.

Where the defendant on his counterclaim for breach of contract demanded judgment for a sum of money only, the trial of such issue by a jury is discretionary with the trial justice.

An appeal from the judgment by defaulting defendants will be dismissed without prejudice to such action in the trial court as they may be advised.

Appeal by Mary Walpole, owner, and Edward J. Farrell and William B. O’Mally, as sureties, from a judgment rendered in the City Court of the city of blew York in favor of the plaintiff, after a trial by the court, the notice of appeal bringing up for review an order denying a motion made by defendant Walpole for an order framing the issues arising upon her counterclaim and for a jury trial.

Wise & Seligsberg (Clifford H. Owen, of counsel), for appellants.

Katz & Sommerich (L. E. Schlecter, of counsel), for respondent.

*50Guy, J.

The action is brought to foreclose a mechanic’s lien where an undertaking has been given to discharge the lien.

The complaint alleges a *quantum meruit*for $335 and interest. Both the owner and the sureties were made defendants and both of them appeal.

The answer of the owner denied the material allegations of the complaint and set up a counterclaim of $5,000 for breach of contract.

The court found that the reasonable value of the work done and materials furnished was $1,485 of which $1,150| had been paid; also that plaintiff had substantially performed. The pleadings admitted the execution of an incomplete building contract.

The plaintiff testified to the conclusion that he had done all the work specified in the contract, and had been paid all that was due except $335. He and his witness admitted that several violations had been discovered and ordered by the tenement house department to be removed, some of which had been removed, but one costing $15 to rectify had not been removed. Defendant’s architect and others testified to substantial defects and omissions, one of which would cost $100 to $150 to rectify. In rebuttal, plaintiff failed to deny or meet this.

Plaintiff contends that this is an action on *quantum meruit.*This contention is erroneous, but, even if it were sound, plaintiff cannot recover on *quantum meruit*under a written contract without proving substantial performance. Hogg v. Larchmont Yacht Club, 134 N. Y. Supp. 1079; Tinley v. Van Wert, 119 App. Div. 738. Excuses are not a substitute for substantial performance, conclusions as to performance are not proof thereof, and the very substantial defects, omissions and violations proven defeat a recovery. Easthampton Lumber & Coal Co. v. Worthington, 186 N. Y. 407, 408-413, 581, 582; Fox v. Davidson, 36 App. Div. 159, 161, 162; Smith v. Ruggiero, 52 id. 382; affd., 173 N. Y. 614.

Defendant Walpole also brings up for review the order denying her motion to frame certain issues arising upon the *51counterclaim and for a jury trial of said issues. An action to foreclose a mechanic’s lien, where an undertaking had been given to discharge the lien and where the sureties on the undertaking are parties defendant, is triable by the court without a jury. Schillinger Fire Proof Cement & A. Co. v. Arnott, 152 N. Y. 584, 590, 592; Valett v. Baker, 129 App. Div. 514, 515; Mertz v. Press, 99 id. 443. The right of a trial justice in an equity suit, to satisfy his own conscience as to the facts without the aid of a jury, is as much of a constitutional right as is the right of a jury trial in actions at law where the material facts are disputed. Shepard v. Manhattan R. Co., 131 N. Y. 215, 223, 226.

Where a counterclaim is interposed in an equity action in which defendant demands judgment for a sum of money only, as a *“*counterclaim in an equity suit is not a case where the right to a jury trial existed at common law,” a trial of such issue by a jury is discretionary. MacKellar v. Rogers, 109 N. Y. 468, 472; Bennett v. Edison Electric Ill. Co., 164 id. 131—133; Smith v. Fleischman, 23 App. Div. 355-359. The privilege of a jury trial of the issue raised by a counterclaim must be applied for within ten days after the joinder of issue. Rule 31; Arnot v. Nevins, 44 App. Div. 61, 62. In the ease at bar issue was joined December 26, 1911; the motion to frame issues was delayed until May thirty-first following, and the motion was, therefore, properly denied.

The defendants Farrell and O’Mally defaulted in the court below and a judgment was entered against them by default. The appeal taken by them must, therefore, be dismissed but without prejudice to such action in the lower court as they may be advised.

Judgment as to defendant Walpole reversed and a new trial ordered, with costs to appellant to abide the event.

■Seabuey and Gerard, JJ., concur.

Appeal dismissed as to defendants Farrell and O’Mally, and judgment as to defendant Walpole reversed and new trial ordered, with costs to appellant to abide event.