Bernstein v. Swidunovich , 20 A.D.2d 883 ( 1964 )

Judgment directing foreclosure of mechanic’s lien and providing for payment to plaintiff contractor of the balance due under a contract for the renovation of a building unanimously reversed, on the law and in the interest of justice, and a new trial ordered, without costs to either party. On the record made the decision by the Trial Justice would be justified. However, it is evident from the testimony .presented by defendant that there was a failure to establish proof with regard to the condition of the building immediately after plaintiff contractor completed his work, with respect to the value of the installation and cost of aluminum windows rather than wooden windows, and in a number of other, less important items, all of which was relevant in establishing a failure on the part of the contractor to have performed his contract substantially. Under the circumstances a new trial is justified if the risk of substantial injustice is to be avoided. Upon a new trial the court should not be confined as to the issues already determined, except as to the effect of the certificate of occupancy provision in the contract, but the matter may be assessed de novo. Concur — Breitel, J. P., Yalente, McNally, Eager and Steuer, JJ.