The plaintiff sued for a defined amount of money which it claimed to be due for services rendered under a written contract with the defendant. The defendant denied performance as alleged by the plaintiff, but admitted a certain amount as due for such work as the plaintiff had done under the contract. The complaint was dismissed as to the items disputed by the defendant, and judgment was directed in favor of the plaintiff as to the items not controverted. From this judgment the plaintiff appeals.
There is no dispute as to the facts. The case was here before, and a judgment directed for the defendant was reversed. (Thomas, J., 158 App. Div. 546.) The defendant had a contract, with specifications, to build a mortuary vault in Greenwood Cemetery. According to the specifications, cement piles were tobe driven under all walls-and piers in “ staggered rows.” “ The piles shall be of type known as Raymond Concrete Steel Piles, consisting of a steel shell driven into the ground and then filled with concrete. * * * The piles shall be driven to refusal with a No. 2 Vulcan Steam Hammer; refusal being understood for the purpose of this specification to mean that the piles shall not penetrate more than 1" under the last 16 blows of the hammer.” The defendant submitted the plans *524and specifications to the plaintiff for a proposal, which the latter made in writing. This proposal was accepted by the defendant, and its language as to the driving of the piles is as follows: “ The pile core shall in each case be driven until not more than ten blows of a No. 2 Vulcan steam hammer are required to secure 1 inch penetration.” The proposal provided for one hundred and eighty-one piles, each twenty feet in length. Additional piles or additional lengths of piles were provided for at one dollar and thirty cents a lineal foot. In all, two hundred and thirteen piles were driven, that is, thirty-two additional piles. As to twenty-three piles, the defendant disputed performance according to the terms of the contract. A list of these disputed piles was stipulated. As to these piles, the plaintiff had stopped driving, as to each of them, while penetration of one inch was going on with less than ten blows of the hammer, in some cases at four, five, six, seven, eight and nine blows of the hammer. All of these disputed piles were from thirty-two to forty-one feet in length. We can find no evidence in the case showing why the plaintiff stopped driving under less than ten blows of the hammer. It may be that the core by which the driving was done was less in length than the pile, but in the stipulated list there is at least one pile as to which the core wag longer than the pile. Concededly, as to twenty-three piles, the plaintiff ceased driving at a point where the core still penetrated one inch under the last ten blows of the hammer. Why was this ? We do not know, and we find no evidence in the record which attempts to explain it. It certainly was not the presence of boulders, for the core was still penetrating. Geer, the construction manager of the plaintiff, was called as a witness and he does not explain it. There is much argument between counsel as to the interpretation of the contract between the parties. There is no claim of ambiguity, each insists that it was plain, but the appellant asserts that the trial court really changed its wording and interpreted it in opposition to its plain terms. We do not so see it. It seems to us quite plain that the contract required the piles to be driven until a penetration of not more than one inch resulted from the last ten blows of the hammer. The standard of hammer blows was ten. If there was no penetration of more than one inch *525under the last ten blows, then the driving might cease. The driving was to go on, however, until that result was attained. Such was what the contract required and that was not done as to the twenty-three disputed piles, and hence as to them the contract was not performed by the plaintiff. Neither party asked to go to the jury, for there was no possible dispute as to the facts.
The judgment and order should be affirmed, with costs.
Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred; Thomas, J., read for reversal and for judgment in favor of plaintiff for the price of the piles in dispute.