I dissent-. The facts may justify a temptation to ignore the doctrine of stare decisis and decide in plaintiff’s favor, but the law, as I see it, is clearly with the defendant. This was essentially a work, labor and services case, .the contract was entire, the plaintiff did not fully perform, and, under one of the most elementary of the rules of law, it cannot recover for what it did do. There was no waiver to bring the case within the doctrine of Avery v. Willson, supra. The rigor of the old rule in the sales cases, denying recovery for partial performance (Catlin v. Tobias, 26 N. Y. 217), has been ameliorated, in certain situations, by the Sales Act, but we cannot usurp legislative power and extend the scope of the statute to transactions that are not *161sales. Nor is this, in my opinion, a proper case for the application of the doctrine of substantial performance. However harshly the rule of law that seems to me to be applicable to the facts here may appear to work in this case, I think we should not hesitate to apply it. Bad law is made by attempting to extricate particular litigants from particular difficulties. If a well-settled rulé of law seems not always to work justice, the remedy lies with the legislature. Where conditions of life have changed, courts may and should change their doctrines to meet and accord with the altered conditions; but, otherwise, departure from fundamental rules leads to confusion worse confounded, so that no man can know how to regulate his conduct.
I vote for affirmance.
Judgment reversed.