Supreme Court, December, 1917. [Vol. 102. from the contract price; that in such a case the owner's agreement was to pay upon performance and not otherwise; and if the evidence shows that the alleged defects, omissions and changes ran throughout the structure, here and there and everywhere, that that would justify a finding that there had not been a substantial compliance. The jury was also advised that in considering whether a substantial performance was had they might take into account the percentage of defective or omitted work; that the theory of the law was that the contractor would be permitted a recovery where the omission to perform has been the result of an oversight, misunderstanding or excusable neglect, and the same may be adequately indemnified by an allowance; that the performance must be substantial; that the omissions and defects must be unsubstantial. There were defects, changes and modifications in the structure of this building. The plaintiff gave evidence that assuming the defects and changes existed as claimed by the defendant the same could be cured at an expense of $88. Of course the plaintiff denied that many of these defects existed. The defendant's evidence shows the cost of curing the alleged defects was $1,344. If defects existed to the extent of even the lesser amount of the two, namely, $882, required to repair the building, then the plaintiff cannot here recover. Witt v. Gilmour, 172 App. Div. 110. The plaintiff contends upon this motion that because an inspector of the building department of the city of Albany passed this structure while in process of erection, as did the inspector in the bureau of health, that therefore there can be here considered no violation of the building code or of the health laws. With this theory the court cannot agree. It can Misc.] Supreme Court, December, 1917. hardly be said that the contractor had executed his work in accordance with the provisions of the law, irrespective of what the fact was, because some official charged with the responsibility saw fit to give a certificate to the effect that the contract met the requirements of the statute. Whether there was a failure or a compliance with the laws governing such matters depends upon the fact, not upon somebody's certificate. The inspector from the bureau of buildings in the city of Albany stated that upon his first inspection there were no double timbers sustaining partitions as required by the law and by the contract; that five days thereafter upon a second inspection the double timbers were there; that eighteen months thereafter, when the building was supposed to be complete, an inspection was had, just before the trial of this issue, the floor boards having been removed for that purpose, and that at that time the double timbers were not there. So we have this witness testifying that the double timbers were not in, that they were in, and again that they were not in. The proof in the case is that they are not there now, and this is the fact, irrespective of the testimony of the inspector that at one time he saw them there. It must be remembered that that was the time when he passed the building. Many of the alleged defects, concerning which there is practically no dispute, are structural in their character. Many of them are easily corrected. Some under the evidence call for the expenditure of considerable in amount and others for trifling sums. The record as a whole demonstrates clearly that this structure was not built in accordance with the plans and specifications. Whether the defects are as serious as the defendant here contends in every respect and in Supreme Court, December, 1917. [Vol. 102. every detail is quite doubtful. Certainly some of the weaknesses claimed by the defendant could easily be cured by a small expenditure of money and without any large effort, and they may properly be classed as unsubstantial defects. But the undisputed evidence in the record with reference to other defects calls for a serious consideration and creates a grievous doubt as to whether those defects can under any circumstances be considered as unsubstantial. The failure to construct the trimmer beams, defective condition of the back staircase, the cutting away of a bearing beam for the insertion of pipes, the failure to connect the gutters on the house with the street sewer, the lack of double beams under partitions, are among some of those defects which appeal to this court as essential and substantial in their structural uses and requirements. The painting and the papering of walls can easily be done and are not such defects as should be classed as substantial. That condition can be remedied without any injurious effect upon any part of the structure. The transcript of the evidence is not at hand, we cannot refer to every detail, but enough has been recited to indicate the impression upon this court as to the verdict rendered. During the trial the court was quite free to say, not however in the presence of the jury, but to the attorneys in person after they had in open court consulted with reference thereto, that some adjustment would be desirable. For thus expressing the thought criticism was thereafter made by the defendant, and in this connection upon the motion to set aside the verdict the plaintiff's counsel suggested that if the court felt called upon to modify the verdict to any reasonable extent that such modification would be accepted on the part of the plaintiff. It does not seem that the court is called Misc.] Supreme Court, December, 1917. upon to express its views as to what should be the financial adjustment between these parties. It may not be acceptable to both, it certainly would not be to one. What here must be determined, irrespective of the regret that it may occasion a new trial, or the possible printing of a very long record, is to say whether or not the jury rendered such a verdict as the weight of the evidence required to be found. In answering the question as to whether there has been a substantial performance under the rules of law, if this was a review of the findings of a referee, this court would be obliged to reverse the same; there does not seem to have been, as shown by the record, such a reasonable substantial compliance with the provisions of this building contract on the part of the building contractor as requires the defendant to pay the contract price less a small sum deducted for unsubstantial and minor defects. Unless the contract was substantially complied with the plaintiff cannot recover under the law. The jury cannot be charged with acting under passion or prejudice, but inasmuch as the weight of evidence on the question of substantial performance does not support the verdict it cannot stand. order may be entered setting aside the verdict. Judgment accordingly. An Supreme Court, December, 1917. [Vol. 102. BURNS GRAIN COMPANY, Plaintiff, v. ERIE RAILROAD COMPANY, Defendant. (Supreme Court, Erie Special Term, December, 1917.) Carriers duties of-notice to shippers - tardy delivery — negligence damages — pleading - demurrer to complaint when — actions sustained. Where a common carrier has knowledge of traffic conditions reasonably likely to delay delivery it is bound to at least notify the shipper of possible delay before accepting goods for carriage. Where in a shipper's action against a common carrier for damages for an alleged tardy delivery of goods the defendant, which without comment accepted the goods for transportation, pleads as a separate defense that any delay was not due to its negligence but solely to congestion of freight and traffic and that although it had all necessary facilities on hand for ordinary traffic it was physically impossible to care for the enormous and unusual volume of freight tendered to it at all the times mentioned in the complaint, but there is no allegation of notice to the shipper of possible delay in delivery, a demurrer to said. defense on the ground that it is insufficient in law will be sustained. DEMURRER to defense. Charles K. Robinson, for plaintiff. Moot, Sprague, Brownell & Marcy (James C. Sweeney, of counsel), for defendant. TAYLOR, J. In this action the plaintiff demands damages from the defendant, a common carrier, on account of claimed tardy delivery of merchandise. The defendant has answered and to the third separate defense set up in the amended answer the plaintiff demurs on the ground that the said defense is insufficient in law. In considering this defense I have |