Edward Rowe, Respondent, v. Isabel H. Gerry, Appellant, Impleaded with The East Norwalk Lumber Company and Others, Respondents, and Others, Defendants

Edward Rowe, Respondent, v. Isabel H. Gerry, Appellant, Impleaded with The East Norwalk Lumber Company and Others, Respondents, and Others, Defendants. Second Department, April 20, 1906. Pleading — ’building contract—recovery may be had under complaint • alleging performance when substantial performance is shown. Uñdér a complaint alleging performance of a building contract, a recovery by the contractor may be had when substantial performance is shown and found by the court. Substantial performance is performance, especially so in the • case of building contracts where some of the infinite details' may easily be -. ' overlooked. Reargument of an', appeal by the defendant-, Isabel H. Gerry, from a judgment:of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 26th ,day of ¡November, 1904, upon the- decision of the court-, in an action brought to foreclose a' mechanics’ lien .filed by the plaintiff’s assignor and by the other defendant lienors wherein judgment was entered against the defendant, Isabel H. Gerry. Henry G. K. Heath, for the appellant. J. Mortimer Bell, for the respondents.. [MAJORITY — Per Curiam:] Per Curiam: This case has been here twice on appeal from judgments for the plaintiff and certain of the defendants (86 App. Div. 349 ; 109 id. 153). The complaint was to recover the final balance due on a building contract, i. e., it was for performance of the contract. The first judgment was reversed for the reason that performance was not shown by the plaintiff, but non-performance, and excuse therefor, whereas a recovery could be had under the complaint only for performance. The second judgment was affirmed because substantial performance, which is performance, was shown and found by the trial court. A realignment was ordered (110 App. Div. 916). The learned counsel for the appellant understands that the second judgment should have been reversed because it was for substantial performance, which he understands from our two former opinions to be not performance, but non-performance. We do not'wish to leave any such impression as that. There is a wide difference. Substantial performance is performance, and entitles the plaintiff to recover under a complaint for performance, and especially is that so under building contracts where some of the infinite details may be easily overlooked. (Glacius v. Black, 50 N. Y. 145 ; Spence v. Ham, 163 id. 220.) It may well even happen that the plaintiff may not know of existing omissions when he draws his complaint for performance. When such omissions are proved by the defendant, the plaintiff may recover on his complaint for performance if they be unsubstantial and not willful, but the cost of supplying them has to be deducted. The judgment is affirmed. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred. Judgment affirmed, with costs.