The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1844-10-13
Common Pleas.
Before q full Bench.


Der ID The following decisions were delivered when
the court proceeded TO hear arguments
Mr. R ads Wiliam Mitchell Public administrator.
This il q suit by the Public Admin strasor. II
brought by former Public Administrator and il cont in
ued BY ms successor IN once Iae former enter, upon
which is demnrred by defendant tor nsnficiency De-
murrer oveIruled
George Nc Corfnfy VS. - Siratfon. This suit was
originally brought by contractor against the Of
buildings upon which he at work, to recover the
of contract the defendant having entered upon
the premises and refused to allow plain to complete
the work. alleging he had departed from the contract and
injured the defendant by using inferior materials in the
work The case having been submitted TO referees, the
latter reported in favor Of defendant Plaintiff then NOV
ed to set aside report of Referees and the cded
that the law allowed builder to for work DONE
which has been accepted by the owner But there 10 to
be deducted ample allowance for all such damages as
the defendant has sustained by the departure from the
contract The ndant contended thai he did aban
don his contract but was discharged, and Is conse
quenty entitled to recover the whole contract price
But the referees did appear to have considered that
the proof addsced established this position The court
thinks that is justified in refusing builder to
complete his work In manner substantially different
from the contract either in the quality OF the materials
or workmanship This power he can exercise at sns
stage OF the Transaction but does at his risk and
unless he can prove the fact substantial breach of
he justi6ahly interfere to prevent the
petion OF the work. Every breach Of special agree
rescnded but do olhough the precise rule
this subject unsettled not bound to stand
by silently and have building erected, for which he will
be bound to pay Is being constructed in substance il
different from the contract The Court further decides
question: whether the defendant jussihably nterered
From my view Of the testimony, two referees properly
concluded that the defendant not bound to allow the
plaintiff to proceed with the building, the way in which
he had proceeded The rule should apply to both parties
to the contract and the contract is in substance viola
ted by the the builder may consider it rsscnded
and for damages equivalent to the contract prce
The plaintiff complains that the referees should have al
lowed the price for the work far compile
ted but of opinion with referees, that in cases
like the present the value of the working materials only
should be allowed because when the builder dsregards
the contract his part in its execution the owner
refuse pay the contract price order The report of
referees confirmed with costs
A. F. Smith, for plaintiff; McKeen and Pnckney for de
PENDANT
The Same VS.. The Same This appeal from an
order OF Chambers made in another suit growing out OF
the same transaction.
Decision Order appeal from order must be modi.
fed to stay proceedings until the judgment ID set
aside the motion to set aside the report Of referees
determined No costs OF appeal.
In the Of ANDREW Nc Goca John Sfsphenson and
oherThe jury gave sealed verdict in favor Of the d.
fendants and sgsnst defendants Stephenson, Eagesto
and Batell, for $40.
The Court adjourned for the termJ