Opinion
July 12, 1977
Appeal from the Oneida Supreme Court.
Present — Simons, J.P., Dillon, Hancock, Denman and Goldman, JJ.
Judgment unanimously affirmed, with costs. Memorandum: Defendant, a building contractor, appeals from a judgment of Supreme Court, entered on a nonjury verdict awarding plaintiff the sum of $1,000 as the reasonable cost of replacing a septic system installed for her by defendant at the time he constructed her new home. Defendant contends that the trial court erred in awarding damages on a theory of implied warranty. He urges that under Perlmutter v Beth David Hosp. ( 308 N.Y. 100), there is no liability for implied warranty on a contract for services, only on the sale of goods. Although there is support for defendant's position (see Sears, Roebuck Co. v Enco Assoc., 83 Misc.2d 552, affd 54 A.D.2d 13; Aegis Prods. v Arriflex Corp. of Amer., 25 A.D.2d 639), as well as for the opposing view (Centrella v Holland Constr. Corp., 82 Misc.2d 537; Town of Ogden v Howarth Sons, 58 Misc.2d 213; Staff v Lido Dunes, 47 Misc.2d 322), there is no need to decide that question. The evidence indicated that the defendant represented to plaintiff that he could build a septic system, that he was familiar with the area, that he knew the condition of the land was swampy, but that she could be assured she would have no water problems. The evidence showed too that in estimating his bid for the job, he put in a bid somewhat higher than usual to provide for the extra precautions he was going to have to take because of the condition of the land. On these facts the court was therefore justified in finding that the defendant had breached an implied term of the contract, viz., to construct a workable septic system for plaintiff. (Dunn v Bloom, 15 A.D.2d 687; Lutz v Bayberry Huntington, 148 N.Y.S.2d 762. )