In Dannat v. Fuller (120 N. Y. 558).it is said: “It- is a well-settled rule that where one party.demands strict performance as to time by another party, he must perform oh his part all -the conditions which are requisite in order to enable the other party to perform his: part, and a failure on the. part of the party demanding performance to do the preliminary work required in" order to enable the other party to complete Jiis. within the. time limited, operates as a "waiver of the time, provision in the contract.”
In Weeks v. Little (89 N. Y. 566) the head; note is as, follows-: “Where, by a building contract, damages for delay on the part of the contractor to perform his- contract within- the time' limited were fixed and liquidated, and the work contracted for could not be completed until other work to be done'by the owner'was finished,, held,, that a failure on the:' part of the latter to- finish his- work in season to enable- the contractor to complete his contract within the- time, specified was a sufficient excuse for delay, and discharged him from liability for thei liquidated damages; and this although some work not affected, by The delay of the owner was not completed- within the time; ‘ that' as the damages were payable upon a failure of entire completion, which; was rendered impossible by the owner’s, act, a recovery could not be had for a failure, which she made inevitable.” -
In the present case it appears that over 1-0,000 feet of new curbing was required to complete the work.' This curbing the defendant by its contract agreed to furnish. 1 It furnished less than 3,-500' feet prior to Rovember 1, 1901, the time fixed for the completion of the work on Main and Broad streets. Ro curbing was furnished for Broad street prior to that timeJ Some of the work on Main street also lacked curbing Which was not furnished until 1902. Ro part of the contractor’s work except excavation could be performed until the curbing, where1 new curbing was used, was furnished1. These facts were proved by the defendant’s engineer, and under the authorities cited establish, á waiver on the part'of the defendant as to the. provisions for liquidated damages so far as the work on, Main and -Broad streets is concerned. Defendant contends that it. was incumbent- on the contractor-to .submit to- the defendant’s engineer any claim .for delay arising by reason of any *335act or omission on the part of the defendant and that it was the province of such engineer to adjudge the number of days the work was delayed by reason of such fault of the defendant. That would doubtless be required under this contract had the defendant not waived the liquidated damages. That was the purport of the decision in Phelan v. Mayor, etc., of New York (119 N. Y. 86), greatly relied On by defendant. But there was no element of waiver in that case. -Such requirement is only necessary for the purpose of diminishing the contractor’s liability for liquidated damages and'is of no consequence when such damages are waived by. the defendant. The difficulty here is that the defendant not merely delayed performance of the contract, but made performance thereof impossible within the specified time.
After the defendant gave to the contractor notice deferring the work on Chestnut street until 1902 and fixing the time within that year during which the work should be performed it proceeded to acquire land for the purpose of widening such street. The contractor began work on Chestnut street May 29, 1902, and at that time the village was still engaged in the process of widening the street. To what extent the street was widened and how much additional work was thereby necessitated does not appear. But it is certain that additional time was required for the performance of such additional work. The contract between the parties had reference to the streets as they existed at the time such contract was made. ■ It did not contemplate the widening of any of those streets and the increased work resulting therefrom. The contract was that the contractor should by June 20, 1902, complete the work on Chestnut street as such street was when the contract was made and not as it might be subsequently changed by the defendant. The provisions in the contract as to liquidated damages- certainly do not apply to Chestnut street, changed as it was by the defendant after the contract was made and in a manner not therein contemplated.
There is no claim in this case that the plaintiff and its assignor have not faithfully performed the contract except as to the time limits. The defense rests absolutely on nothing save that it is “ so nominated in the bond.” While the defendant is for that reason alone entirely justified in its claim, and it would be the duty of the courts to sustain it ,nevertheless such claim is highly penal in its *336characteristics, and whenever a party attempts to enforce such a claim he should be quite certain that he is himself without fault and lias' fully observed oh his part the requirements of his Contract.' The judgment should be affirmed, with costs. .
Judgment unanimously affirmed, with costs; Paekek, P. J., dissenting. ' - - -