Miller v. McMahon , 135 A.D.2d 1030 ( 1987 )

— Casey, J.

Appeal (1) from a judgment of the Supreme Court (Connor, J.), entered June 2, 1986 in Columbia County, upon a verdict rendered in favor of plaintiff, and (2) from an order of said court, entered June 2, 1986 in Columbia County, which denied defendants’ motion to set aside the verdict.

Plaintiff, a construction contractor, was hired by defendant James E. McMahon to perform certain construction in connection with McMahon’s new home in the Town of Ghent, Columbia County. Plaintiff was hired after he submitted an initial estimate of $11,000 for the projected cost of excavating, installing a waterline and septic system, and constructing a roadway from the house site to the town road, as well as other items. Additionally, plaintiff was requested to perform extra excavation and bury a nonfunctional barn. The construction of a pond was also discussed. Plaintiff installed the pond, although McMahon argues that such installation was unauthorized. However, McMahon knew of the pond’s installation and expressed no dissatisfaction to plaintiff. When a disagreement between McMahon and plaintiff arose regarding slanderous statements allegedly made by plaintiff against McMahon, plaintiff was ordered off the job. Although plaintiff had then received $11,500 from McMahon, he instituted suit for $14,080.19 for extra work. Defendants counterclaimed for damages resulting from plaintiff’s alleged negligence in damaging certain of his property in the performance of the work and for completion costs on the unfinished portion of the contract. At trial a charge schedule, prepared by plaintiff’s wife, was considered by the jury. Plaintiff was awarded $9,500, while defendants were allowed $845 for completion costs. Defendants’ motion to set aside the verdict was denied and they appeal.

A contractor is entitled to recover for extra work performed with permission, regardless of the existence of a written authorization (Jones Constr. Co. v Parklaw Realty, 76 AD2d 1018, affd 53 NY2d 718). Although McMahon steadfastly contends that the pond was not authorized, the evidence offered by plaintiff and credited by the jury was otherwise. Furthermore, McMahon, for whatever reason, did not express dissatisfaction with the installation of the pond although aware of its construction.

Defendants next contend that it was error to permit the jury to consider the charge schedule compiled by plaintiff’s wife in regard to all of the work plaintiff performed, because such schedule caused the jury to disregard the original $11,000 contract between the parties. Contrary to this contention, Supreme Court clearly and properly charged the jury to consider plaintiffs claim for compensation only for the extra work that he performed (see, Savin Bros. v State of New York, 62 AD2d 511, affd 47 NY2d 934) and that plaintiff was entitled to compensation for work authorized but not included specifically in the original contract (see, Provo v City of Syracuse, 262 NY 127). Based on the evidence presented, which included the cost of the installation of the pond of over $6,000, sufficient proof justified the jury’s verdict.

As to defendants’ claim of full completion costs, it appears that defendants hired Leo Gardina to complete construction of the driveway after plaintiff left the jobsite. Gardina’s bill was $2,422.50 for that item. Plaintiffs claim, that the lesser award by the jury of $845 on this item is clearly erroneous, is without merit. The necessity of defendants’ incurring $2,422.50 was within the province of the jury. This and the other controverted items were clearly factual issues. We see no reason to disturb the jury’s determination in relation thereto and affirm the order of Supreme Court denying defendants’ motion to set aside the verdict.

Judgment and order affirmed, with costs. Kane, J. P., Main, Casey, Weiss and Levine, JJ., concur.