#### Leslie White, Respondent, *v.*Carolina Hoffman Von Waffenstein, Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Guaranty — Changing hot-water heating system — Action for failure to perform.

Where plaintiff, after installing a hot-water heating apparatus in defendant’s apartment house, contracted to change the system from high temperature to low temperature for a certain amount, *671which he agreed to relinquish in ease the defendant should be unable to make a substantial reduction in the amount of fuel used, and also guaranteed the apparatus to be installed to be capable of heating the rooms in which the radiators were located to seventy degrees in zero weather, his failure to fulfill his guaranty is not excused by the fact that a flue in the building was too small and that by reason of the construction of the building it was a difficult 'one to heat.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of the Bronx.

Musgrave & Warner, for appellant.

Headley M. Greene, for respondent.

Scott, J.

The action is for a balance claimed to be due for the installation of a hot water heating apparatus in defendant’s apartment house. The complaint sets-up only a contract dated October 11, 1901. The proof tends to show and the plaintiff concedes upon his brief that the system installed under this contract has been fully paid for. There was a second contract, not referred to in the complaint, upon which the plaintiff now seeks to recover. Hearly all the evidence on the trial related to this second contract, and, apparently by common consent, it was treated as if covered by the complaint. By the second contract dated October 7, 1902, the plaintiff undertook to change the high temperature hot water heating system, theretofore installed by him, to a low temperature system for the price of $125, to be paid two years from the date of completion. In case the defendant should be unable to make a substantial reduction in the amount of fuel used, plaintiff agreed to relinquish his claim for the $125. Plaintiff also guaranteed the apparatus to-be installed to be capable of heating the rooms in which radiators are located to seventy degrees in zero weather. The change in installation was made. The apparatus proved to be incapable of heating the rooms to seventy degrees iu zero weather, or even in weather much warmer. The plain*672tiff seeks to excuse his failure to comply with his guaranty by asserting that a flue in the building was too small and that by reason of the construction of the building it was1-a difficult one to heat. These excuses are frivolous and insufficient. Before he made the contract he had already installed one system in the house and knew or had every opportunity to acquire knowledge of the conditions and character of the house. Plis guaranty was absolute and was made with reference to the house as it was, and as he knew it. The specification attached to his first contract did make some reference to' the size of the flues, but nothing of that kind appears in the second contract. The case is a simple one of an unfulfilled guaranty. Furthermore the preponderance of evidence is to the effect that the substituted apparatus did not make a substantial reduction in the coal supply. The evidence was wholly insufficient to sustain the judgment in favor of plaintiff. The defendant interposed a counterclaim which was disallowed. As there must be a new trial it is unnecessary to consider whether any allowance should have been made.

Dugro and MacLeaw, JJ., concur.

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