John Johnson, Respondent, v. Frederic De Peyster, Appellant

John Johnson, Respondent, v. Frederic De Peyster, Appellant. (Argued June 17, 1872; decided November 12, 1872.) This was an action upon a building contract. The principal question below was as to whether plaintiff, the contractor, had substantially performed his contract. The referee found this issue in his favor upon conflicting evidence. He also found that defendant sustained damage from insufficient and defective work to the amount of $150, which he allowed as recoupment. Held, that the question whether the defects were so trivial and insignificant as to justify the finding that the work was substantially performed was a question of fact, and that the amount allowed was not such as to show that the finding of substantial performance was unsustained by evidence ; also held that evidence bf usage, as to measurements in the locality where the building was built, was competent, and became part of the contract. If one of the parties was ignorant of the • usage it was not binding, but that was for him to prove. John JW. Whiting for the appellant. Samuel Hand for the respondent. [MAJORITY — 'Grover, J.,] 'Grover, J., reads opinion for affirmance. All concur, except Peokham, J., not voting. Judgment affirmed.