Collins v. Knuth , 64 N.Y.S. 549 ( 1900 )

Willard Bartlett, J.:

The plaintiff undertook to do all the plumbing work in* four houses in process of construction by the defendant. He was to receive $1,448 in all, the first payment of $600 to be made when the rough plumbing was in place. The defendant paid him $333 on account of the work and no more. In this action the plaintiff has recovered judgment for the balance of the first paymént provided for in the contract, together with interest thereon. The propriety of this recovery depends' upon whether the plaintiff had performed the contract up to the point where he became entitled to the first payment. So far as this is a question of fact, it must be deemed settled by the judgment of the court below, which is based-upon conflicting evidence as to the extent and character of the plaintiff’s work. There is one question of law, however, which requires to be considered. The contract bound the plaintiff to well and sufficiently erect and furnish. the specified plumbing work agreeably to the specifications thereunto annexed. These specifications contained no provision in regard to the size of the vent pipes, but declared that the building department permit was “ to be followed in all cases where it usually governs.” The specifications submitted to the commissioner of buildings, however, upon which the building permit was issued, and which enter into and form a part of such permit, provided that there should be one- vent pipe in each building, with a diameter of two inches. The figure “ 2 ” was written in a blank space before the word “ inches.” The vent pipes put in by the ]flaintiff. were two inches in diameter. The rules and regulations of the building department, however, require that for water closets, on three or more floors, and in all tenement houses exceeding three stories in height, the vent pipes must be three inches in diameter. This rule was printed on the permit as one qf the conditions upon - which it was issued and accepted. There were to be water closets on three floors of the defendant’s buildings. Here, then, was a conflict between the written and the printed portions of the permit, which constituted a part of the contract between the plaintiff and the defendant. The plaintiff constructed the vent pipe as required by the written portion. In so doing he performed the condition of the contract on his part. The rule is, that where such a discrepancy occurs, the written will prevail over the printed portion of the instrument. (Harper v. Albany Mutual Ins. Co., 17 N. Y. 194; Weisser v. Maitland, 3 Sandf. 318, 322.) In this case the written portion of the permit must have been inserted at the instance of the defendant himself, who thus specified two inches as the diameter of. the vent pipes, and this circumstance alone suffices to show that he has no ground for complaint in the fact that the plaintiff did not make them larger.

The judgment "in favor of the plaintiff necessarily involves a finding by -the trial court that the rough plumbing work was completed according to the contract. This disposes of the counterclaim based on, the expenditures which, the defendant says, he had to •make in order to finish the work himself, after the plaintiff had failed to do so. There was a conflict in the testimony on these-issues, and, as has been repeatedly declared in this court, we have no power, under such circumstances, to review a judgment of the Municipal Court upon the facts. (Northridge v. Astarita, 47 App. Div. 486.)

The judgment appealed from should be affirmed.

'All concurred.

Judgment of the Municipal Court affirmed, with costs.