Condello v. Stock , 285 A.D. 861 ( 1955 )

Memorandum by the Court. We have reached the conclusion that upon the preponderance of the credible evidence the plaintiff is entitled to the total sum of $919.69 for extras, rather than the sum of $344 as found by the trial court; that the cost of completing the contract and remedying the defects in the work done by the plaintiff amounts to $2,641.98, rather than $3,000 as found by the trial court.

The contract price was $16,500. The defendants paid the plaintiff on account of such contract $15,800. Since the plaintiff did not substantially perform his contract he may not recover the balance of the contract price. Nevertheless the measure of defendants’ damage sought in their counterclaim for breach of the contract is the difference between the contract price and the actual cost to defendants to complete the contract and remedy the defects (Along-The-Hudson Co. v. Ayres, 170 App. Div. 218). Since defendants agreed to pay $16,500 for the building of the house, their actual damage is whatever it cost them over and above that amount to complete it in a good and workmanlike manner.

The amount to which defendants are entitled on their counterclaim should be computed as follows:

Contract Price ...................... ............... $ 16,500.00

Extras.............................. ............... 919.69

$ 17,419.69

Paid by defendants on account of contract.................. .....$ 15,800.00

Cost of completing contract............ ..... 2,641.98 18,441.98

$ 1,022.29

The judgment should be modified so as to provide for judgment in favor of the defendants in the sum of $1,022.29, with interest from January 13, 1953, with costs and disbursements in the trial court, and, as so modified, affirmed, without costs.

All concur. Present — McCurn, P. J., Kimball, Piper, Wheeler and Van Duser, J. J.

Judgment modified on the law and facts in accordance with the memorandum, and, as modified, affirmed, without costs of this appeal to any party. Certain findings of fact disapproved and new findings and conclusions made.