This is an instance where under the finding of “ substantial performance ” the learned referee has sought to make for the parties a new and different agreement from this written contract to build a concrete road. It contained minute and explicit provisions for excavation and removal of loam and vegetable matter to a depth .of twenty-four inches, with a filling to a subgrade laid evenly six inches below the top, which was a completed surface grade, formed from a layer of Peekskill gravel to be five and three-quarters inches thick after rolling.
In December, 1915, this work was suspended by consent, the top courses not yet being finished. There was minor work done about a court and garage in September, 1916. In the following winter, defects appeared, so that in April, 1917 (about the eighth), the parties met with the architect and *588engineer in attendance. The spring season made a time of urgency. Plaintiff admitted that he had not replaced the three inches of gravel removed. The parties reached an agreement, evidenced by a letter. Plaintiff was to have a payment of $4,000. He was to put the road in condition, repair the drive and fix the gutters. This was in writing, and in confirmation plaintiff wrote: “ I am still holding good to my agreement and ordered by phone shortly after my conversation with you, 60 yds. of Peekskill Gravel and 120 yds. of Peekskill Screenings, with which to repair the drive as to my agreement.”
Acting on this, defendant, on April thirteenth, sent plaintiff his check for $4,000.
Plaintiff, however, did nothing. He even countermanded his order for Peekskill gravel.
There was a further interview on the road, when borings were made and excavations had, showing alleged deficiencies and irregularities in the depths and in the materials found. This was after May tenth, as plaintiff finally admitted, when recalled on rebuttal. Besides plaintiff and defendant, there were present Bushnell, the engineer, Harrington, the surveyor, and Sargent, the architect’s assistant. After making many borings it was suggested that the road should be plowed up, although defendant held out to plaintiff that if he furnish the surface material, with oil to help bind it, it might be satisfactory. Plaintiff then stated that he would have to consult his lawyer. But again he refrained from doing anything to complete his job.
This action had then been begun. On the next day the architect sent to plaintiff a formal default notice as the contract provided; also concurrently issued to defendant the usual certificate by which was attested that such default was sufficient ground for terminating plaintiff’s employment. Notwithstanding the positive terms of the contract, this certificate was not admitted and was ignored in passing on the evidence.
Such efforts of a trial court to soften the conditions of a building contract (Zimmermann v. Jourgensen, 70 Hun, 222; affd., 144 N. Y. 656; Spence v. Ham, 163 id. 220; Witt v. Gilmour, 172 App. Div. 110) have uniformly been disapproved. *589I think road construction is subject to like conditions, especially when the work was never accepted but had" to be done over. When the magnitude of plaintiff’s omissions had appeared, the referee even ruled out the architect’s certificate, which the contract had made final. Here was non-performance of the original contract; then a default in putting in the gravel in April; with a final refusal of defendant’s offer to take an oiled surface.
I vote to reverse, and to send back the case for retrial. Judgment affirmed, with costs, and additional finding made.