It is claimed, however, that at the time of Mr. Rogerson’s discharge as attorney by Mrs. Maharon the contract was so nearly completed that the original contract governed. This contention is based upon the language of the court in Matter of City of New York (supra) and the decisions in Matter of Krooks and Matter of Tillman (supra). In the City of New York case the court said, “ under our recent decision in Martin v. Camp, the client has the right to end the employment at any time before complete performance.” In Matter of Tillman the attorney had a contingent contract for three per cent of the proceeds of litigation which might be recovered against several insurance companies. After the Ghent’s right to recover had been established and the litigation was terminated except for computation by the referee of the amount due, the court below ordered a substitution of attorneys on condition that the client file a bond in a specified amount to pay his former attorney three per cent of such recovery as might be had. The order was reversed by the Court of Appeals and the matter remitted to Special Term with directions to fix the appellant’s lien on the basis of quantum meruit. Nothing was said in the opinion upon the subject of complete or <mask>. In Matter of Krooks *862(supra) Conrad was retained by Jennie Krooks as her attorney in connection with certain condemnation proceedings and agreed to pay him all moneys in excess of $38,000, “ which may be paid to me or my assigns as the result of said proceedings.” The attorney performed his services with such energy and skill that the justice at Special Term stated in memorandum that the sum of $46,500 was awarded by him for the Krooks property. Two days after that memorandum was published Mrs. Krooks canceled her retainer and brought a proceeding to set aside the written agreement and to determine the attorney’s lien. Without taking evidence of the value of the attorney’s lien it was fixed at the amount “ which may be paid as a result of said condemnation proceedings, over and above $38,000.” The opinion in the Court of Appeals said (p. 332): “ Assuming that the rule were to be narrowed to the extent of allowing cancellation only in those instances where the attorney’s services had not been substantially completed [Matter of City of New York, 219 N. Y. 192, 194], it would now in this case require application.” The court held that the services were not shown to have been so nearly completed as to preclude the client from the discharge of her attorney and the retainer of a different one, and reversed the lower courts and remitted the matter to Special Term to take testimony as to value of the attorney’s services and to fix his lien. The court further said “ the client’s right to control her retainer does not permit her to cheat her attorney * * *. If the attorney shall be paid the reasonable value of his services, no cheating will occur. The contract has been canceled and its terms cannot establish the standard for compensation.”


The cause was referred, and the referee by his report, •dated in December, 1875, found the making of said contract between defendant and the Thorntons : That the Thorntons proceeded to do and substantially finished the work in accordance with the contract, and by reason thereof, on the *2122d of November, 1874, and on the date of the filing of liens-in the report mentioned, there was due said Thorntons from the defendant, Prigge, $1,550, being so much of the price mentioned in said contract as was then unpaid. This sum the referee awarded to-other lienors, who had filed their liens for materials furnished and work done for said Thorntons in pursuance of said contract, having precedence to that of the-plaintiffs, and he also found that these plaintiffs furnished said materials and performed' such labor for and at the-, request of said Thorntons, and that they had filed their said lien therefor on the 6th of November, 1874. Upon this report a judgment was entered substantially conforming to the report and adjudging that the entire contract work was performed by the Thorntons, and awarding the payment of said balance due of $1,550 thereon to the persons having precedence to these plaintiffs, such amount being, however, insufficient to satisfy such prior claims. This judgment so far as shown stands in full force. The plaintiffs, notwithstanding such judgment by complaint duly verified in the present action, make a personal claim again the defendant for the balance due them for said materials and work, upon evidence of one of the plaintiffs, and another witness, tending to prove that after they had commenced to- perform: their sub-contract with the Thorntons, and had furnished but a trivial part of the materials, they told defendant they had stopped work on the job; that they wouldn’t trust the Thorntons and wouldn’t do any work for them ; that defendant requested them.to go on and finish the work, and" said he would pay for it; that he would accept the contract they had with the Thorntons and pay for it; that they resumed work on the job according to the contract they had with the Thorntons. Under this solemn farce of perjury, either in the former or latter proceeding, the plaintiffs present this ex-traordinary claim. They have already had a finding in their favor, in the former action against the Thorhtons, upon their claim as made therein, that they furnished the materials and performed the labor for and at the request of the Thorntons, which were of the reasonable value of $1,400, which finding *213would be available for any future action against the Thorntons. It was also therein found and judgment rendered accordingly in harmony with plaintiff’s pretensions in that action, that .all the work on the building was substantially performed by the Thorntons according to the original contract with the defendant, and an award was made for payment by this defendant of the balance due for entire performance to prior lienors. This plain and patent case is but confused by the technical and elaborate but unappreciable argument of the plaintiff’s counsel. The former action was, so far as this defendant and the plaintiffs were concerned, one in rem. It adjudged that the moneys now claimed by plaintiffs were due the Thorntons, the contractors, for <mask> by them of the entire contract; that plaintiffs as sub-contractors became lienors for and in respect to the present •claim which they then presented and urged in the double relation of lienors and personal creditors of the Thorntons, and had judgment for it in-their favor as due on their subcontract with the latter. It needs no criticism or weighing of authorities to demonstrate that such a judgment, unreversed •and in full effect, must upon every principle of justice be held conclusive upon the rights of the parties, and debar such a •claim as is now presented on behalf of the plaintiffs.


I have dwelt at much length upon this case, as it is a peculiar one, and because I feel that the case would be chargeable with injustice if we were to hold that the defendant is to enjoy the benefit of a building which cost nearly $6,000 more to erect than he has paid for it, upon the ground that the evidence shows a special contract to erect it for $19,500, or a building contracted for at $19,500, and augmented by extra work to the amount of $3,563.76, which is the defence set up by the answer. I am for adhering rigidly to the rule which holds parties to the full or <mask> of their contracts, but the terms and conditions agreed upon must distinctly appear, or the foundation is wanting for the application of the rule. If the defendant desired the advantage or security to be derived from the express stipulations of a special contract, he should have had those stipulations distinctly and clearly expressed before Naylor began to build, so that if any alterations or additions were afterwards made, they would distinctly appear upon reference being had to the original contract. If they were extra work, it could be shown at once by looking at the original agreement, or if substituted for work therein provided for, what was substituted could be compared with what was omitted, and the extent to which the contract was varied, or the effect that the change might have upon the whole contract, would readily appear. It is this want, in the case, that renders it impossible to say what was extra work or what was change or alteration, or to adopt any other rule than the one I have laid down. The defendant has had the benefit of the $1,700 worth of work and materials, furnished by the plaintiffs, in the erection of the building. He has not paid for it. He is indebted at least to that extent, and the plaintiffs having been subrogated to the rights of Naylor, to the extent of their claim, by the filing of his lien, are, in my judgment, entitled to recover that amount from the defendant.


The defendant, however, claimed in its posttrial brief that plaintiff cannot recover any amount since it had not established <mask>, but had ‘‘ in fact breached its contract by leaving the job without excuse ”, with 22 items of ‘ ‘ omitted and defective work ’ ’ totalling $40,498.50; that in any event, it, defendant, is entitled to an affirmative judgment to the extent of $17,939.10 ‘ ‘ representing the amount of willful exaggeration of the lien ”, which should be declared void for that reason, with a specification of the amount of each of the 14 items* by which such lien was willfully exaggerated. (Lien Law, § 39-a; Goodman v. Del-Sa-Co Foods, 15 N Y 2d 191, 198.)


*710It argues that since <mask> is the legal equivalent of full performance, M&M fulfilled its obligation under the Contract and American Safety owed no further duty under its bond. We do not necessarily agree with American Safety's interpretation of this evidence or that the summary judgment evidence shows that M&M achieved substantial completion as it is defined in the Contract. However, even assuming that M&M achieved substantial completion of the Contract, this did not relieve M&M of its duties under the Contract to complete the work in accord with the Contract documents and to correct or replace any defective work.


Applying the rationale of the Witherell decision to the present facts the plaintiff should be entitled to recover under the theory of <mask> even though he did not have the specific forms verified by an authorized dealer. The clear purport of paragraph 3 of the warranty is that the plaintiff properly maintain the engine of his vehicle. The plaintiff has submitted the repair orders to establish that the required service was performed. The plaintiff has performed his underlying obligation and the mere fact that he is able to show that the proper service was performed by copies of the repair orders in lieu of the specified forms is immaterial. The plaintiff’s right to recover should not be denied for failure to comply with this mere technicality having no pecuniary im*193portance. The repair orders submitted establish that the proper service was performed.


Kleberg's contends that the trial court failed to require exact performance of the Agreement and that the trial court incorrectly granted <mask> to URI. In support of its argument, Kleberg cites Kitten v. Vaughn, 397 S.W.2d 530, 533 (Tex.Civ.App.-Austin 1965, no writ), which purportedly stands for the proposition that parties to an agreement are entitled to exact performance of the agreement. However, as we held in Smith and recognized by the Austin Court of Appeals, the doctrine of substantial performance has expanded and is now available in breach of contract cases. See Smith, 112 S.W.3d at 279 ; supra ; see also Ten-Booms v. Obregon, No. 03-09-00713-CV, 2011 WL 2162884, *7 (Tex.App.-Austin June 3, 2011, no pet.). The trial court correctly found that substantial performance was available as a defense to Kleberg's breach of contract allegations. See Smith , 112 S.W.3d at 279.


It necessarily follows then that the fixed and acknowledged' principles and rules of law that invariably govern and interpret other estates upon condition, whether corporeal or incorporeal, must apply here. Now it is well settled, that precedent conditions, which, must take place before the estate can vest, must be literally performed. Conditions subsequent operate upon estates already created and vested, render them liable to be defeated if broken. Those working forfeiture are not favoured in law and must be construed strictly ; nevertheles the grantee is bound to their <mask>. “ The obligation between the government and the owner of such franchises as roads, bridges, and ferries, is mutual. He is obliged to provide. and. maintain facilities for accommodating the public at all times with prompt and convenient passage.. The law on the other hand provides him *585with a recompense by means of an exclusive toll. An estate in such a franchise and an estate in land rests upon the same principle, being equally grants of a right or privilege for an adequate consideration. 8 Kent’s Com. 459. When then the estate in such a franchise has been legally vested by due and full performance of the precedent conditions (as in this case, by building the bridge according to the literal terms of the act) how stands the law as to the interpretation and application of the subsequent conditions ?


The effect of plaintiff’s failure to strictly perform the contract herein is to render the extension illegal. There was proof that the extension as constructed does not comply to building code requirements and that the C of O was issued without inspection based upon misrepresentations by plaintiff to his architect. Accordingly, it has been shown that any request for a new or currently revised C of O from the town will be denied unless the defect of an improper crawl space is corrected. In order to correct the defect, the floor of the extension must be removed, the walls braced, excavations undertaken to remove additional earth, and the concrete and floor rebuilt. These corrections are tantamount to reconstructing the addition. The plaintiff has not therefore shown either complete or <mask>.


Also, the “no-fault” ground and certain other “fault” grounds, specifically, Domestic Relations Law § 170 (2), (3), (5) and (6), are similar in that they each contain elements which require proof of a minimum time duration. For example, Domestic Relations Law § 170 (2) requires abandonment for a period of one year. Domestic Relations Law § 170 (3) requires confinement for a period of three or more years. Domestic Relations Law § 170 (5) requires living apart pursuant to a decree or judgment of separation for one year and the filing of proof of <mask>. Domestic Relations Law § 170 (6) requires living apart pursuant to a written agreement for one year and the filing of proof of substantial performance. Domestic Relations Law § 170 (7) requires the relationship to be broken down irretrievably for six months and a statement under oath by the plaintiff. The underlying ground for the divorce is not the statement by the plaintiff. The ground for the divorce is the irretrievable breakdown of the marriage, which must have existed for six months.


*861It is true that the conversation between the executor and the legatee indicates an understanding that, limited only by the judicial directions in the construction proceeding, the agreement was later to he integrated in a writing. "Whether that one transaction, without anything more, would result in an enforceable contract (cf. Restatement, Contracts, §§ 25, 26, and 1 Willis-ton oil Contracts [Rev. ed.], §§ 26, 27, 28, 28A) is not decisive of the issue here because the single transaction is not the sole basis of <mask> of the conditions. Both the executor and the legatee appeared to regard the legatee’s act as an assent to the conditions so far as legal, and the personal representative of the legatee affirmed his act by executing the formal contract. In the opinion of the court, the performance of the conditions was not so personal to the legatee that it could not be completed by his personal representative.


It is true that past arrearages in moneys owed are not per se disqualifying where they have been made up in full and the defaulting party has stayed current for a reasonable period of time. Thusly, in Rubin v. Rubin (35 A D 2d 460), a prior delinquency in alimony was corrected and the husband had been in full compliance with the separation decree for eight years. The court found (p. 462) <mask> primarily because of the ‘ ‘ long and continuous history of complete performance ’ ’ after the initial default. It reasoned that under the Gleason doctrine it would be an exercise of futility to forever bar a party from obtaining a divorce because of past derelictions in support payments long since corrected. See, also, Van Fort v. Fan Fort *142(62 Misc 2d 981, supra), where after initial defaults in the husband’s support payments, a four-year period of compliance followed, immediately preceding the divorce action, and was found to constitute substantial performance. (1 Foster-Freed, Law and the Family, § 6:31, pp. 332-333.) Here, however, there has been no period of any real duration where compliance, rather than intransigent refusal, has characterized plaintiff’s actions.


The cause of action to recover for money to be paid under the contract can be sustained only upon showing that after the completion of the contract plaintiffs had demanded of the engineer, who, under the contract was to make the final certificate, that he make such a certificate, and that he had refused or unreasonably neglected to comply with that demand, or that fraudulently, corruptly, or in bad faith he made a false certificate, so that the court would be justified in setting aside the certificate as not binding upon the plaintiffs. By the contract sued on the engineer was required to certify to the aqueduct commissioners that the plaintiffs had completely performed the contract, and in his certificate was to state from actual measurement- the whole amount of the work done by the plaintiffs, and the value of such work under-and in accordance with the terms of the contract. The engineer was not to certify to the plaintiffs, but to the aqueduct commissioners, and, if he so certified to them before the commencement of this action, it is clear that the amount to which the plaintiffs were entitled was the amount which, by such certificate, should appear to be due over and above the payments theretofore made to the plaintiffs; and as it appears that the chief engineer, acting under this provision of the contract, did, on the 18th of June, 1889, certify to the commissioners the amount due to the plaintiffs under the contract in this case, that certificate is binding upon plaintiffs unless they show fraud, corruption, or bad faith. Assuming that there is evidence to sustain a finding by the jury that prior to the 18th day of June, 1890, there had been an unreasonable delay in making the certificate, such delay would not nullify a certificate actually made before an action was commenced to recover for the work done under the contract, nor entitle the contractor to proceed as though no certificate had actually been made. It is only where a party to a contract is entitled, because of his <mask> of the contract, to receive the stipulated compensation for such performance, and commences his action to recover such *525compensation, and justifies his failure to produce a certificate required by the contract to be produced as a condition precedent to his recovery, by the refusal or neglect of the person designated to make the certificate required by the contract to be made, that evidence of such refusal or neglect is material. Where it appears that prior to the commencement of the action a certificate required by the contract had been actually made by the person designated therein to make such a certificate, the time at which such a certificate was made is immaterial, and such a certificate becomes binding upon the parties unless proved to be made fraudulently or in bad faith. By the contract in question the right of the plaintiffs to receive the final payment depended upon the making of the certificate by the engineer that the plaintiffs had completely performed the contract on their part, and his certificate was to state, from actual measurements, the whole amount of work done by the plaintiffs, and the value of such work, according to the terms of the contract, and the defendants were to pay in cash the amount remaining after deducting from the amount or value contained or stated in the last-mentioned certificates such sums as should theretofore have been paid to the plaintiffs under the provisions of the contract.


Following this leading case it is well settled that a plaintiff who relies on <mask> has the burden of showing the nature of the defects and omissions, that they are not substantial, and the cost of making them good. (Nieman-Irving & Co. v. Lasenby, 263 N. Y. 91; 5 Williston on Contracts [Rev. ed.], § 1475; 2 Clark’s New York Law of Contracts, § 919, p. 1403, and cases cited.)


Although the death of the decedent terminated the relationship of attorney and client (Matter of Dunn, 205 N. Y. 398; Angelo v. Angelo, 282 App. Div. 981; Matter of Maratto, 145 N. Y. S. 2d 621), our courts have held that the attorney’s right to compensation will not be affected by the death of a client where it has become vested by <mask>. (Matter of Levine, 247 App. Div. 19.) None of the fruits or avails of the attorneys’ services were received prior to the death of the decedent and in the opinion of this court the decedent’s death did not divest the claimants of their right to collect such amount as was due to them under the agreement of retainer as a result of the performance of their services. From the stipulation of facts submitted, it would appear, therefore, that the attorneys are entitled to receive 10% of the sum of $7,846.67 which was collected by the estate as its share of the royalties through December, 1958, or 10% of the amount collected as royalties by the estate which can be attributed to the attorneys ’ services rendered prior to death. The court also holds that the said attorneys have a lien against the royalty funds collected and to that extent have a priority over the claims of general creditors against this fund. The claim, however, is a general claim and not an administration claim.


In the case of Roth v Roth (74 Misc 2d 135, 138), the court stated: "The phrase 'all the terms and conditions’ is unmistakable. It contemplates examining the entire decree, determining the component directives, and ascertaining whether they were substantially performed by the party seeking divorce. Noncompliance with an insignificant provision should not bar a finding of <mask>. Matters which are essentially organizational and optional, such as the noncustodial spouse’s exercise of visitation rights, strictly speaking are not 'terms or conditions’ that by their waiver would constitute nonperformance. (Van Vort v Van Vort, 62 Misc 2d 981 * * *) *963* * * But, the major mandatory decretal duties imposed upon a party seeking to rely upon the decree as a basis for divorce must nonetheless be 'all’ substantially performed. Substantial noncompliance is still a disqualifying factor.”


Even if a defendant technically breaches a contract, the breaches can be excused if the defendant has substantially performed his or her part of the contract. Dexter v. Brake, 46 Kan. App. 2d 1020, 1033, 269 P.3d 846 (2012). When discussing the doctrine of <mask>, this court has noted that it is "'intended to protect the right to compensation of those who have performed in all material and substantive particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects.'" 46 Kan. App. 2d at 1033 (quoting 15 Williston on Contracts § 44:52, p. 220-21 [4th ed. 2000]). But the doctrine does not apply when the parties, by the terms of their agreement, make it clear that only complete performance is satisfactory. 46 Kan. App. 2d at 1033-34. Nor does it apply if the breach was willful. First Nat'l Bank of Omaha v. Centennial Park, 48 Kan. App. 2d 714, 725, 303 P.3d 705 (2013).


Again, it appears without contradiction from the evidence of the entire case, that Hoffman, the contractor, in. the early part of April, 1868, ceased work, before the fifth payment' became due; that on the 10th of that month, the defendant by written notice insisted upon performance of the balance of the work then unfinished; that Hoffman did-not return-to finish the work, and that the defendant was compelled to finish it himself; that at the time of Hoffman’s abandonment of the contract there were no doors hung on the basement and first or parlor floors of either house, and that a considerable part of the trimmings remained undone. It is, therefore, not á, case of imperfect performance, or of a defect in the manner of performance, but a clear case of non-performance of the contract, and consequently, the referee erred in finding, as matter of fact, a <mask>, which entitled Hoffman to the payment of the fifth installment and, as matter of law, that plaintiff is entitled to judgment against the defendant, and the judgment must be reversed,unless the further finding, that after the abandonment of the contract, the plaintiff caused the order to be presented to the defendant for payment, who waived the strict perform- ■ anee of the contract by Hoffman, and promised and agreed to pay the amount called for by said instrument, to the plaintiff is not only supported by the evidence, but sufficient in law, when considered with the other real and undisputed facts of the case, to sustain it.


<mask> of a contract will support a recovery of the contract price less allowances for any minor deficiencies in performance. (10 NY Jur, Contracts, § 324; Homecraft Alterations Corp. v Brill, 10 AD2d 732, affd 9 NY2d 978; Clothier v Kracko, 27 Misc 2d 920; Cordon Bleu, S.A. v BPC Pub., 451 F Supp 63; Dauchey v Drake, 85 NY 407; Porter v Traders’ Ins. Co. of Chicago, Ill., 164 NY 504.) There is substantial performance of a construction contract where all the essentials necessary to the full accomplishment of the purpose for which the building has been constructed are performed with such an approximation to complete performance that the owner obtains substantially *222what is called for in the contract. (10 NY Jur, Contracts, § 328; Crouch v Gutmann, 134 NY 45; Spence v Ham, 163 NY 220.)


Where there have been defects and omissions of this kind, the question whether there was or was not a <mask> is a question of fact for thd referee upon the whole evidence (Nolan v. Whitney, 88 N. Y. 648 ; Johnson v. DePeyster, 50 N. Y. 666 ; Glacius v. Black, Id. 145), with whose conclusion an appellate court will not ordinarily interfere.


The contract expressly specified that the down payment was to be paid “on the signing of the contract.” The seller did not bargain for the buyer’s promise to pay the down payment, but rather for payment itself. Doubtless, the seller would not have executed the contract without receiving what he believed to be the down payment. Accordingly, the buyer’s nonpayment defeats her right to enforce the contract. Moreover, it constitutes a material “failure of consideration” giving the seller the right to rescind the contract. (6 Williston, Contracts [3d ed], §814.) “A material breach leaves less than <mask>, thus resulting in failure of the constructive condition which discharges the promisor. Also it is often said that a material breach results in failure of the consideration for the defendant’s promise, and this is regarded as a defense *1032sufficient to defeat liability” (Simpson & Duesenberg, 7 Encyclopedia NY Law, Contracts, § 1418).


First, we shall find the general doctrine to be, that courts will lean against forfeiture, and will construe conditions going to defeat an estate in favor of the grantee so far as is compatible with the plain intent of the condition. Moreover a minute and literal compliance with the very letter of the condition is not required to support and preserve the estate as it is in respect to conditions precedent necessary for creating and vesting it. A [ *586 ] <mask> according *to the intent of the grant will prevent a forfeiture. Thus as to conditions in deed, it is held by - the best authorities (which I cite as condensed by Comyns) that “ it is sufficient if the substance of the condition be performed.” 1 Roll. 426. “ So a condition that one deliver letters patent, and he delivers an exemplification of them; that he enfeoff, and he convey by lease and release ; that he give license to carry goods, and the party is disturbed by a stranger; that he withdraw his suit, and he discontinúe. 1 Roll. 427. This is enough.” Comyns’ Dig. Condition, G. 14. Again, in the same title L. 1, it is said of conditions subsequent generally, “ If the condition is performed in substance, it is sufficient. So if it be performed^ as near the intent' of the con-' dition as can be. So as well when the intention is to defeat as to create an estate.”


This correspondence was such as to comply with these rules, and, therefore, to create a binding contract on the part of the defendant to receive and pay for the brick on their arrival at the port of New York, and their delivery upon the wharf on the opening of navigation on the Hudson ; and it appeared, as a fact, that this navigation was open on the thirty-first of March, when the brick arrived, and that the time had also arrived when the defendant himself declared that navigation would be opened on the Rondout canal, through which it was probably designed by him to take these brick. But, as the defendant refused to accept or receive the brick which were offered, the point is presented whether they were in the condition which the contract required them to be in to subject him to the obligation of receiving and taking the brick, and paying the price for them. At the time when the brick were unladen upon the wharf they were fourteen in number short of the contract quantity, and in the warehouse receipt, which was given on the sixth of April, when they were taken in store, it is stated that about one hundred of the brick were broken. When these brick were broken in this manner does not appear otherwise than by inference from the evidence. They do not seem to have been handled, or moved in any manner, after they were unladen from the steamer on the wharf until they were taken into the warehouse; and there is ground, therefore, for inferring, either that the brick were broken when they were laden on the steamer or in her transit across the ocean, or in their delivery from the steamer on the wharf. No intervening circumstance appears to have arisen which would account for the breaking of the brick in any other 'way, and they are stated to have been in this *253condition, at the time when they were received in store. Under the contract, as the brick were to be imported by Merchant & Co., they were at their risk until their delivery to the defendant upon the wharf; and, as these brick were broken either when they were laden upon the steamer or during their carriage, or in the process of unlading them, that risk and loss was upon Merchant & Co., and not upon the defendant. That they were short in number and broken in this manner appeared by the plaintiff’s evidence upon the trial, and this fact was made a ground for the support of a motion to dismiss the complaint at the close of the plaintiff’s evidence. If the brick in this condition had been accepted and received by the defendant, the contract might be held to be so far performed as to subject him to liability for the price, less the reduced value of the broken brick and the value of those not delivered at all, for the case then would present the fact of a <mask> of the agreement, which would render the defendant liable to this extent. (Clapp v. Thayer, 112 Mass., 296; Dauchey v. Drake, 85 N. Y., 407, 411.) But the fact which was essential to bring this case within that rule did not exist, for the defendant at no time accepted or received the brick, or any portion of them. A delivery order was obtained for the brick, which is stated to have been indorsed and sent to the defendant when the goods were entered at the custom-house; but this delivery order was not retained by the defendant, but it was returned to the witness, Merchant, without any explanation or statement whatever with the bill which had been rendered for the brick. This bill is dated on the 1st of April, 1886, and the import of the evidence is that with the order it was returned soon after that date, and not later than April fifteenth, to Merchant. There was, therefore, no acceptance of the brick through the medium of this transaction, as there might have been if the order had been retained by the defendant. (Hayden v. Demets, 53 N. Y., 426.)


Since their claim can thus be based, at best, on <mask>, the general contractors have failed to prove the *914facts necessary to sustain any recovery by them on the contract as set forth in their first cause of action, because “ the contractor cannot recover the entire contract price when defects or omissions appear, for he must show not only that they were unsubstantial and unintentional but also the amount needed to make them good, so that it can be deducted from the contract price and recovery had for the balance only.” (Blanchard v. City of Saratoga Springs, 241 App. Div. 193, 194-195 see, also, Spence v. Ham, 163 N. Y. 220.)


The plaintiff and his assignors have a contractual right, accrued, liquidated, and in no sense contingent, to these bonus payments. The amounts were determined and the obligation to make the payments became fixed when the home office in Italy approved the recommendations of the director of the New York branch. It is plain that this was done in accordance with the custom of many years standing, and that the plaintiff and his assignors had long relied upon these semiannual bonus payments as constituting part of their compensation. I do not think it is important that the plaintiff and his assignors were prevented by the outbreak of war and by the taking of possession of the bank by the Superintendent of Banks from continuing their employment after December 11, 1941. The payments would have been made to them on or about December 15, 1941, and it seems to me that by December 11th there had *36been <mask> by the plaintiff and his assignors of the services which they were required to render for the second half of 1941. It is not as if the plaintiff and his assignors had abandoned their employment before the termination of that semiannual period, or as if they were discharged. They were simply prevented from working any more by forces beyond their control and that of their employer.


Though the building is finished and in possession of the owner, still if the contractor, in erecting it, has materially departed from what was agreed upon—if he has failed substantially to do what was specified and stipulated for in the contract—he can recover nothing, and practically forfeits to the owner what is done. Smith v. Brady, 17 N. Y. R. 173. This is a stringent, but healthy and necessary rule, to secure the faithful performance of contracts; but as the penalty it imposes upon the defaulting contractor is a severe one—in this case involving a loss of labor and materials valued at over four thousand dollars—the court, in applying the rule, should be well satisfied that the case is one coming clearly within it, and that the contractor has utterly failed to show a <mask> of his contract.


*395«*#*** The law does not adjudge that a mere silent occupation of the building by the owner amounts to a waiver, nor does it deny to him the right so to occupy and still insist upon the contract. The question of waiver of the condition precedent, will always be one of intention, to be arrived at from all the circumstances, including the occupancy. To conclude, there is, in a just view of the question, no hardship in requiring builders, like all other men, to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true, that such contract embraces a variety of particulars, and that slight omissions and inadvertancies' may sometimes very innocently occur." These should be indulgently regarded, and they will be so regarded, by courts and juries. But there can be no injustice in imputing to the contractor a knowledge of what his contract requires, nor in holding him to a <mask>.


Thus, while it appears that by the strict rule of law, Wheeler’s death would defeat the legacy to Lester, yet under equitable principles, where the condition is capable of <mask>, the decease of the first legatee, or of the party to whom he is to pay in order to obtain the legacy, will neither forfeit the legacy nor extinguish the condition. The right to perform the condition is a vested interest in the legatee, and the right to reap the benefit of performance a vested interest in the party to be paid, either of which is transmissible to executors or administrators in case of death.


To the same effect also see Nolan v. Whitney (88 N. Y. 648). This claimant is exactly within the rule as laid down by those cases. He acted in “ good faith ” and “ intended to comply with the contract ” and he did “ substantially comply with it.” The value of the concrete as originally laid in the six slabs to all intents and purposes was the same as that laid in the second set, and so under the doctrine laid down by Judge Cardozo in Jacob & Youngs v. Kent (supra) the State would not have been entitled to deduct anything from the contract price payable to claimant upon the completion of his contract even if it had attempted to do so. But it did not attempt to do that. After taking the cores the State was fully aware that there had been a <mask> of the contract. It was thus in a position to say to the contractor, “We discover that a small portion of this concrete is thinner than seven inches and we propose to withhold a certain amount from the contract price as an allowance to the State by reason of this thin concrete.” But it did not say that. It compelled the contractor to pull out the six slabs and lay them over at great expense before it would pay him any part of the sum due him. This it clearly had no right to do because the slabs as already laid were a “ substantial ” performance of his contract as we understand all the authorities in this State on that subject. The claimant is clearly entitled, therefore, to be reimbursed for the expense that he was put to in taking out the six slabs and relaying them in the amount of $1,451.02.


The only exception to this rule arises from the application of the principle of “ <mask>.” This principle is of recent growth, and has been evolved by our courts to mitigate the rigors of the rule above stated. It is limited in its application, and is well defined. A party may recover for the performance of a contract not only when he is able to show exact performance, but substantial performance will suffice. In defining substantial performance, the Court of Appeals has said: “ It is now the rule, that *229where a builder has in good fadth intended to comply with the contract, and has substantially complied with it, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects.” Woodward v. Fuller, 80 N. Y. 312, 315. Again, the court has said: “ It is a general rule of law that a party must perform his contract before he can claim the consideration due him upon performance ; but the performance need not in all eases be literal and exact. It is sufficient if the party bound to perform, acting in good faith, and intending and attempting to perform his contract, does so substantially, and then he may recover for his work, notwithstanding slight or trivial defects in performance, for which compensation may be made by an allowance to the other party.” Nolan v. Whitney, 88 N. Y. 648, 649. The italics in the foregoing quotations are ours. This principle has been defined and limited, as above, in many other decisions. Spence v. Nam, supra; People v. Tompkins, supra; Schultze v. Goodstein, supra; Easthampton L. & C. Co. v. Worthington, supra; Norton v. United States Wood Preserving Co., 89 App. Div. 237; Smith v. Ruggiero, 52 id. 382; Holl v. Long, 34 Misc. Rep. 1. So we find that the claimant could not recover, were he in this court claiming performance of the contract, under these circumstances, because he could not show exact performance, and the facts negative any contention of substantial performance. It is a fundamental essential to recovery for substantial performance, that the failure to perform exactly was inadvertent and unintentional. Here, it would have been wilful and deliberate, and after protest by the state. Furthermore, where a recovery is had for substantial performance, the claimant cannot recover the contract price, but only the contract price less the amount which it *230would cost the adverse party to secure or complete exact performance. A party can never profit by his failure to perform exactly. On the contrary, he must compensate the adverse party for his failure. The foregoing is true where the claimant is contending for compensation after alleged performance. The principle of substantial performance has no application whatever in advance of any performance at all. That is, the claimant cannot assert a positive right to omit exact performance, and to make substantial performance in advance of doing the work; much less can he predicate a demand for damages, on a refusal by the state, at that time, to accept a substituted performance in lieu of exact compliance with the contract provisions. See cases cited supra.


Therefore, on this one element of plaintiffs rescission claim, breach of the agreement/warranty, it establishes as a matter of law that one occurred, and defendant fails to raise any issue of fact warranting a trial thereof. But that is only the beginning. On a claim for rescission, the breach must be shown to have substantially defeated the expectation of the parties to the bargain. Moreover, in the event of a nonfulfillment or nonoccurrence of a condition precedent thereby excusing all performance by the plaintiff, the question remains whether defendant raises an issue of fact whether such “nonoccurrence of [a] condition may yet be excused by . . . forfeiture,” a doctrine which holds that “ ‘[t]o the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the *359non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.’ ” (86 NY2d at 691, quoting Restatement [Second] of Contracts § 229.) This is not a question of <mask> of the condition precedent which, it was held in Oppenheimer, “is not sufficient” to satisfy the condition; defendant is thereby relegating to relief, if at all “ ‘under the contract, [solely] through excuse of the nonoccurrence of the condition to avoid forfeiture.’ ” (86 NY2d at 692, quoting Brown-Marx Assoc., Ltd. v Emigrant Sav. Bank, 703d 1361, 1367-1368 [1983].) The parties have briefed the matter almost entirely as a question of material breach for rescission. But it is clear that both must be addressed. It is to these issues that the court now turns.


The defendant in her answer denies <mask> with the provisions of said decree and sets forth as a first affirmative defense that plaintiff has not substantially performed; as a second affirmative defense, that subdivision (5) of section 170 of the Domestic Relations Law is unconstitutional; and, as a third defense, that plaintiff husband was required to come in with ‘ ‘ clean hands ’ ’. Plaintiff herein obtained a unilateral Mexican decree subsequent to separation and ‘ ‘ remarried ’ ’. The latter defense was presented for the first time at the time of trial and is disposed of by Tantleff v. Tantleff (60 Misc 2d 608). In Tantleff, plaintiff husband brought an action pursuant to subdivision (6) of section 170 of the Domestic Relations Law, and the court held that ‘1 subdivision (6) is clearly unconcerned with the conduct and behavior of the parties, as a condition for granting each a right to divorce. The statutory intent is that such right becomes absolute, at the expiration of the two-year period, provided only that the separation agreement has been duly performed * * * Certainly the wording of the statute itself effects no denial of the [plaintiff’s] right to proceed with his newly conferred privileges *983merely because of his alleged misconduct The alleged misconduct was the procurement of a Mexican divorce unilaterally between the time of filing the agreement and the commencement of this action and remarriage. In Tantleff, the court continues (pp. 611-612): “ Defendant relies strongly on the doctrine of estoppel in pais, based on plaintiff’s remarriage following the Mexican decree. Charging defendant [sic] with perverting the provisions of the new statute by £ asking a Court of equity to grant him a divorce against his lawful wife whom he represents to the world he has already divorced, ’ defendant points to plaintiff’s bigamous conduct as well as the alleged humiliation sustained by defendant as bearing on his right to seek equitable relief. While the doctrine of unclean hands has occasionally found expression in matrimonial actions (Packer v. Packer, 6 A D 2d 464), it has not generally been employed so as to bar plaintiff’s right to divorce solely on the basis of his prior activities in obtaining a unilateral foreign decree and re-marrying thereunder.


Considering only the evidence and inferences that tend to support the trial court's finding that appellee substantially complied with the settlement agreement and after disregarding all evidence and inferences to the contrary, see Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002), we conclude that URI established that there was no willful and material departure from the notice provisions of the agreement that would prevent <mask>. Because there is evidence supporting the findings and conclusions of the trial court, we overrule Kleberg's fourth issue.


In addition, "<mask> is in direct contrast to the concept of material breach." Dexter, 46 Kan. App. 2d at 1034. Thus, "[i]f a breach is material, substantial performance has not been rendered." 46 Kan. App. 2d at 1034. A breach is material if one party receives something substantially less or different than he or she bargained for. 46 Kan. App. 2d at 1034.


The service requirements and verifications were conditions precedent to be performed by the plaintiff. As a general principle of law conditions agreed to by a party to a contract must be performed unless the performance thereof is waived or excused. (Noble v Higgins, 214 App Div 135, affd 243 NY 538; Witherell v Lasky, 286 App Div 533; 10 NY Jur, Contracts, §§ 298, 351.) In regard to conditions precedent the courts have recognized that failure to perform a condition may be excused where there has been <mask>. (Witherell v Lasky, supra.) In Witherell the court stated *192(p 536): "Although we recognize the harsh results which may be occasioned by a failure to perform a condition precedent are often softened by the doctrine of substantial performance (Jacob & Youngs v Kent, supra; Spence v Ham, 163 NY 220; Van Clief v Van Vechten, 130 NY 571), we cannot, on the other hand, excuse a complete failure to perform without either a valid reason for noncompliance or even an attempt to perform, the prerequisite considered by the parties sufficiently substantial to make it a condition, precedent to payment. (Schultze v Goodstein, 180 N. Y. 248; Smith v Brady, 17 N. Y. 173.) Substantial performance might make compliance with an express condition unnecessary, but only when the departure from full performance is an inconsiderable trifle having no pecuniary importance. (3 Williston on Contracts [Rev. ed.], § 805.)”


Defendant contends that plaintiff is not entitled to recover any damages because plaintiff breached the contract by failing to complete the demolition and clean-up required by the contract. A contractor can recover on the theory of <mask> only where the failure of performance is relatively slight (Callanan Indus. v Smiroldo, 100 AD2d 717, 718), and we agree with defendant that plaintiff’s performance did not satisfy the requirement (see, Carefree Bldg. Prods. v Belina, 169 AD2d 956, 957). It is the general rule, however, that a party to a contract cannot rely on the failure of another to perform when he has frustrated or prevented the performance (see, Kooleraire Serv. & Installation Corp. v Board of Educ., 28 NY2d 101, 106), and we agree with Supreme Court’s finding that in the circumstances of this case defendant’s failure to pay for the work performed by plaintiff justified plaintiff’s refusal to complete the project (see, Picciano & Son v Olympic Constr. Co., 112 AD2d 604, 607, appeal dismissed 66 NY2d 854).


In Witherell the court denied recovery of the final payment under a building contract where the contractor failed to perform a condition precedent. The contract expressly provided that "Before Payment, the Contractor shall submit evidence satisfactorily to the Owner that all payrolls, material bills and other indebtedness connected with the work have been paid.” The rationale for the court’s conclusion was that the contractor not only failed to submit evidence of payment of all the indebtedness but in fact had not actually paid all of the material bills. It appears that the court in Witherell would have allowed the contractor to recover on the grounds of <mask> if the contractor had in fact performed the underlying obligation of paying the bills and had only failed to submit the necessary proof of payment.


This was a complete change of front on the part of the defendant, and a surprise to the plaintiffs. That the plaintiffs were anxious to carry out their part of the contract is apparent all through the case. They did not want to crowd the defendant, or even appear to do so, but they never intended to abandon their contract or relieve the defendant from its obligations. There was <mask> on the part of the plaintiffs, and but for the acts of the defendant there would have been literal performance.


There can be no question here of acceptance and waiver of defects by the defendant. The present situation is analogous to a house constructed on someone’s land; that person has no choice in accepting the performance of the contract. (See Cawley v. Weiner, 236 N. Y. 357.) Moreover, since there has been no <mask>, there can be no recovery in quasi-contract. (See Steel, Stor. & Elevator Constr. Co. v. Stock, supra.)


*1074I think the evidence here supports the promise claimed, and establishes a <mask> by the plaintiff, that evinces an acceptance of and a reliance on the promise, and is more than sufficient to constitute a good consideration in equity. (See Young v. Overbaugh, supra.) The plaintiff is, therefore, entitled to an enforcement of the parol agreement to convey the land.


The authorities cited by the petitioners for a contrary result are not in point. Strianese v. Met. Life Ins. Co. (221 App. Div. 81); Fink v. Fink (171 N. Y. 616); Matter of Schiffer (135 Misc. 830); Seavers v. Met. Life Ins. Co. (132 id. 719); Orcutt v. Modern Woodmen of America (213 App. Div. 530), and Schoenhols v. N. Y. Life Ins. Co. (234 N. Y. 24) were all cases in which identified individuals were named as the particular payees of the respective policies and the insured attempted to divest their contingently vested rights, but not only failed in the performance of the acts requisite for that purpose, but omitted even the <mask> which might have resulted in giving rights to the persons whom they desired to substitute, under the doctrine of such cases as Luhrs v. Luhrs (123 N. Y. 367); Lahey v. Lahey (174 id. 146) and Hall v. Prudential Ins. Co. (132 Misc. 162). While the policy in Matter of Bongiovanni (147 Misc. 830) was of the industrial type, neither the authorization for payment nor the policy itself were delivered to the respondent by the insured prior to her death, and, in fact, he never heard of the former prior to that event. It is, therefore, obvious that whereas the decedent in that case may at one time have had an intention to benefit the respondent by the proceeds of the policy, this intention was never consummated by any of the methods which have been demonstrated in the case at bar.


There is no evidence that repairs were commenced during the period beginning in February, 1972 when the department invoked section 143-b of the Social Services Law and ending in December, 1972 when the premises were damaged by fire. Mrs. Wegner contends that performance of her part of the agreement was rendered impossible as a result of the fire and that she is therefore entitled to the funds which were reserved for repairs. In promises for an agreed exchange, a promisor is discharged from the duty of performing his promise if <mask> of the return promise is impossible because of the nonexistence, destruction or impairment of the requisite subject matter (Restatement, Contracts, § 281). Since Mrs. Wegner was prevented from making repairs subsequent to the fire, the department is discharged from its contractual duty to release the funds as required for the purpose of repair.


"The will of the electors expressed at an election, of which legal notice has been given, may not be defeated by the failure of officials to carry out directions intended to make the machinery of election more effective. The provisions of statutes intended for the purpose are directly rather than mandatory. In such case <mask> of a statute is sufficient, and in some cases even failure to perform may be disregarded.” (Burke v Kern, 287 NY 203, 218.)


“ The term ‘ <mask> ’, as used in connection with a building and construction contract, is a relative term, and there is no fixed formula, or mathematical rule, for determining whether or not such a contract has been substantially performed. Accordingly the question of substantial performance is one to be determined in each case with reference to the existing facts and circumstances ”. (17A C. J. S., Contracts, § 509, subd. b, pp. 821-822.) In Marshall v. Louron Homes (24 A D 2d 574, 575), the Appellate Division of the Second Department held that 1 ‘ it was for the jury to determine whether the *895builder had completed the contract either fully or substantially ”.


Since this was an entire contract so far as the clearing, grading and cement work is concerned, my conclusion that defendant’s breach of the contract justified plaintiff in terminating it and in hiring other contractors to complete its work, makes it unnecessary to determine the reasonable value of the work completed by the defendant. There can be no partial recovery by a breaching contractor for the reasonable value of his work unless it amounts to <mask> of the entire contract. (Steel Stor. & Elevator Constr. Co. v. Stock, 225 N. Y. 173.)


Outlining the public policy which underlies the concept of what we now call a “conversion divorce,” Judge Fuld noted that, if a reconciliation has not been effected within the statutory period following the separation, “the Legislature has concluded, and reasonably so, that the parties are irreconcilable and the marriage dead.” (Gleason v Gleason at 35.) Judge Fuld found that the legislative design was to render separation decrees and agreements a basis for divorce, and the “deliberate failure” of the legislators to provide any defenses to these grounds evinced and confirmed their intention of abandoning the traditional fault approach to divorce and permitting the termination of marriages if there was no longer a viable marriage. (Id.) The vital and operative requirement was that the parties live apart for at least the statutory period pursuant to a separation decree or agreement for which there is satisfactory proof of <mask>. As Judge Fuld noted, the real purpose of the no-fault provisions was to sanction divorce on grounds unrelated to misconduct; the separation decree or agreement was simply intended as evidence of the authenticity and reality of the separation.


The defense of the Statute of Frauds is thus unavailing. Nor does the circumstance that plaintiffs advanced a total sum of $62,897.45, and not the full amount of $65,000 set forth in the loan agreement, debar them from asserting a claim against defendant. That slight deficiency played no part in the corporation’s and defendant’s failure to perform their obligations under the agreement. Plaintiffs’ <mask> up to the time of presentation of additional creditors’ claims (a considerable portion of which had been personally indorsed or guaranteed by defendant) far exceeding in amount those originally represented, is a sufficient answer to Ms contention that *96he is relieved of responsibility by reason of plaintiffs ’ breach in that respect of the agreement.


Moreover, Kleberg does not challenge the evidence URI presented in support of its <mask> defense. In order to challenge URI's defense of substantial performance, Kleberg must identify those portions of the record that show URI willfully departed from the terms of the agreement or omitted essential points. See id. Kleberg fails to identify any portion of the record which shows that URI deliberately departed from a material stipulation in the agreement pertaining to the delivery of the notices. Kleberg also does not argue that URI failed to meet its burden of proof in proving that they substantially performed in accordance with the notice provision of the Agreement. See Patel, 86 S.W.3d at 307.


Whether relief should be granted or denied here is a question which is addressed peculiarly to the conscience of the court, whose province in the equitable action of specific performance is to do equity and compel fair dealing and the court is free to do that which its conscience dictates. In arriving at a determination the court must consider the provisions of the lease under which 95% of the rents paid by Powderly are applicable to the purchase price of the property under the lease option, the extensive improvements made by Powderly to the real property, his <mask> of the lease covenants, and the insistence of Colonial in claiming the forfeiture for failure to pay taxes without a prior demand for their payment (Jackson ex dem. Weldon v. Harrison, 17 Johns. 66), and its attempt to take advantage of Powderly’s financial predicament.


Moreover, even if we were to find this claim within our jurisdiction, we would find no cause of action stated. Fraud in the inducement makes a contract voidable and subject to rescission by the aggrieved party. (See, e.g., Hadden v Consolidated Edison Co., 34 NY2d 88, 98-100; Mix v Neff, 99 AD2d 180, 182-183.) Claimant relies on the former case and its inoperative holding that <mask> can provide *1050a basis for retirement benefits. The reason this holding was inoperative is because the Court of Appeals specifically found that fraud concerning facts which would have been grounds for discharge (and hence termination from the subject pension plan) was a potential complete defense to a claim for pension benefits. (See, Hadden v Consolidated Edison Co., supra.) The substantial performance doctrine is based on equitable considerations and such are not applicable where fraud is present. Thus it is not important that claimant’s fraud, even though material, may not have substantially impaired the value of his performance. (Cf., Hadden v Consolidated Edison Co., supra, at 97, n 9, and at 99-100.) What is decisive is Hadden’s ultimate finding that if plaintiff’s fraud prevented defendant from discharging him prior to retirement (and hence denying him benefits), then his would-be pension payments could legitimately be terminated when his fraud was exposed (see, supra, at 99), notwithstanding the performance and "consideration” theretofore rendered by claimant (see, supra, at 97-98). In fact, this is what eventually happened in Hadden. (See, Hadden v Consolidated Edison Co., 45 NY2d 466.) Here, Mr. Kutas’ fraud did not merely prevent the State from retiring him, it induced defendant to hire him in the first place. Thus claimant’s argument that his retirement benefits will cost the State less than if a younger man had filled his job is similarly beside the point. All the material authorities claimant cites on this issue suffer the same critical distinguishing feature, to wit, they all specifically make exception for fraud. (See, Hadden v Consolidated Edison Co., 34 NY2d 88, supra; Manowitz v Senter, 62 AD2d 898, 903-904; Matter of Haugh v Levitt, 33 AD2d 838, 839.)


The doctrine of <mask> is usually applied to construction contracts but is not limited to such actions (Hadden v Consolidated Edison Co., 34 NY2d 88; Lenhart— Altschuler Assoc. v Portner, 27 Misc 2d 439). What constitutes substantial performance is a subjective decision (Hadden v Consolidated Edison Co., supra, p 96). The case of Triple M. Roofing Corp. v Greater Jericho Corp. (43 AD2d 594) is particularly significant because it involves two roofs which remained respectively 15% and 30% incompleted and the court *1058held that the evidence failed to establish substantial performance by the roofer, citing Fox v Davidson (36 App Div 159) where the failure to complete only 5% of the total work did not constitute substantial performance. The court went on to say that "the law is well settled that the party who inexcusably defaults may not recover in quantum meruit though the defendant has received some benefit.” In effect the obligation to pay for the partially completed roofs was discharged. (See, also, Spence v Ham, 163 NY 220; Phoenix Hermetic Co. v Filtrine Mfg. Co., 164 App Div 424; Richardson, Contracts [5th ed], § 427.)


Subdivision (5) also contains the proviso that in order to secure the divorce satisfactory proof of <mask> of all the terms and conditions of the separation decree must be submitted by the plaintiff. This language not only envisions, in the case of a successful wife, remaining separated, and in some cases complying with visitation privileges, but also an unsuccessful husband’s concomitant obligations, including the payment of alimony. There is nothing repugnant to the public policy of our State in permitting the unsuccessful spouse in a separation action to obtain a “ conversion ” divorce. To hold otherwise might only serve to force such unsuccessful spouse *806to seek relief in some other jurisdiction and to continue one of the very evils which the divorce reform law intended and attempted to eliminate.


I find that there was not a <mask> of the contract; but the defendant accepted the part performance made with full knowledge at the time that substantial performance could not be made and received substantial benefit from such part performance. I think under the circumstances an implied contract arose to pay the reasonable value of the part performance (Hall v. New Hartford Canning Co., Ltd., 153 App. Div. 562; McDonough v. Evans Marble Co., 112 Fed. Repr. 637; Am. & Eng. Ency. of Law [2d ed.], 152, on subject contracts) which I find to be the sum of $186.50.


The answer to each question should be- adverse to the defendant.. The covenant applied t^¡ the plaintiffs’ land and can be performed in no other place fully. The defendant’s road, with which the contract was made, was a road of very much greater scope and significance than the short road. To go from the new station by this road east, the traveler must first go to Hunter’s Point, a distance of three miles, and then again start by the defendant’s road. There is some proof in the case that the old station is for the special advantage of the plaintiffs’ lands as against the new station. The parties had the right to contract to suit themselves, and a court should give proper weight to that fact. Finally, the defendant is not bound to the plaintiff to keep even the new station at all for any given time. It is for its interest to do so at present, but it may move it or discontinue it. A covenant with the plaintiff is not answered by a performance in another place and with no guaranty of continuance. It seems to me, therefore, that there is not only no <mask> but a complete non-performance as to this covenant. The case does not fall within the cases cited. Generally, these cases arise in actions upon contracts for building and like contracts. If the performance is substantial and the defect can be made good with money, the action is upheld and justice done by compensation for defects. (Heckmann v. Pinkney, 81 N. Y., 211; Woodward v. Fuller, 80 id., 312, and Nolan v. Whitney, 88 id., 648, are such cases.) If this covenant had fallen short in size or cost of station or m time of construction, it might have presented a case to be tried as substantially performed. The land is surrendered and all liability to keep a station on it is abandoned.


The first defense urged by the state is not sustained. A claimant is not always barred from recovery by failure exactly, to perform his contract. An omission may be so trivial as to be wholly disregarded. Or it may be substantial, and yet be of such a character and under such circumstances as to permit a recovery on the principle of <mask>. On the other hand, it may be such as to defeat any recovery whatever. The principles applicable need not be discussed at length. We have considered them in a rcent case. Stanton v. State, 103 Misc. Rep. 221, and cases cited. This contract involved a sum in excess of one hundred thousand dollars. The failure to dip the posts perhaps might be regarded as so trivial as utterly to be disregarded, particularly in view of the circumstances and cause of the omission, but claimants have shown it would have cost about seventeen dollars and fifty cents to dip them. There can be no doubt that this omission ought not to prevent recovery for substantial performance, on deduct*302ing the sum of seventeen dollars and fifty cents from the contract price.


Plaintiff raises a variety of issues in opposition to the motion and in support of the cross motion for summary judgment dismissing the first affirmative defense. She first contends that she tendered substantially completed proofs well within the 60-day period but that they were refused pending completion of three small items as to actual cash value. She contends that such tender is sufficient either under a <mask> theory or under an estoppel theory.


The omissions or deviations in this case amounted, in value to only $380.20 in a contract where the plaintiff was to receive $12,650 for erecting the buildings, and the amount allowed was not such as to show that the finding of a <mask> was erroneous. In Phillips v. Gallant (supra), the defects were found to be of the value of $75, where the amount to be paid for the work was but $800, and it was held that the court could not say, as matter of law, that because of the allowance of that sum the contract was not substantially performed. They declared it to be a question of fact, upon which the decision of the referee was conclusive.


At the conclusion of the joint trial, Neptune moved to vacate the Lien and dismiss the lien foreclosure action based upon IVM’s failure to establish <mask> of the steel or concrete masonry contracts and upon Lien Law § 10 (1) for failure to file the Lien within eight months after the final performance of work. The court held that, based on the testimony and evidence introduced at trial, Big Poll was off the construction site no later than April 21, 2009. Accordingly, the filing of the Lien in January of 20105 occurred more than eight months after IVM stopped performing work for Big Poll. The court vacated the Lien pursuant to Lien Law § 10 (1) and dismissed IVM’s foreclosure action. As a result of the vacatur of the Lien, the court also dismissed Neptune’s counterclaim for wilful exaggeration pursuant to Atlas Refrigeration-Air Conditioning, Inc. v Lo Pinto (33 AD3d 639 [2d Dept 2006]), as a claim for wilful exaggeration is precluded if a lien is found to be invalid based upon any reason other than the wilful exaggeration. Accordingly, the IVM action was dismissed in its entirety.


After some period of time (in this court’s view at least a full year) passes during which the husband has substantially performed the directives imposed upon him by the separation decree, he can submit satisfactory proof of <mask>. This decision in no way adjudicates his ineligibility to ever demonstrate such grounds for divorce. We are finding only that at this point in time the record is overwhelming that plaintiff has not ‘ ‘ substantially performed all the terms and conditions ” of the separation decree.


In order for a building contractor to be able to take advantage of the doctrine of <mask>, he must not be guilty of a willful or intentional departure from the terms of his contract. (See generally, 22 NY Jur 2d, Contracts, §§ 317-320; 36 NY Jur 2d, Damages, § 51, at 92, and cases cited therein.) This doctrine, however, permits compensation for all defects caused by the contractor’s performance. (Supra, citing Spence v Ham, 163 NY 220.) Under this rule the party sued is protected as to any damages he may suffer due to the contractor’s failure to strictly perform and is entitled to the amount of damages in an action by the contractor. (Supra.) The contractor must prove that the defects or omissions were unsubstantial. (Spence v Ham, supra.) This he has not done.


It is well-established law in those jurisdictions which follow the doctrine of Hochster v. De la Tour (2 El. & B. 678) that in bilateral engagements a breach of contract occurs by the act of a party in “ transferring or contracting to transfer to a third person an interest in specific land, goods, or in any other thing essential for the <mask> of ids contractual duties ” or by “ any voluntary affirmative act which renders substantial performance of his contractual duties impossible, or apparently impossible ” (Am. Law Inst. Restatement of Law of Contracts, § 318, b, c).


Although plaintiff does not explore it in so many words, its strongest claim to summary judgment is on the theory that it may undo the transaction because of the nonoccurrence of a condition precedent to closing, i.e., a proper update of the review files as required by section 7.2 of the asset sale agreement. As stated above, section 7 provides in unmistakable terms for a condition precedent to closing that defendant’s warranties are kept current through the closing. (Merritt Hill Vineyards v *363Windy Hgts. Vineyard, 61 NY2d at 112-113.) Plaintiff therefore establishes as a matter of law the existence of the condition and its nonoccurrence. Although the case of Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co. (86 NY2d 685 [1995]) establishes that the doctrine of <mask> is not applicable (86 NY2d at 692), the doctrine of forfeiture is on these facts clearly invoked.3 First, if the nonoccurrence of the condition is not excused, defendant will “ Tos[e] [its] right to the agreed exchange after [it] has relied substantially, as by preparation or performance on the expectation of that exchange.’ ” (86 NY2d at 692 n 2, quoting Restatement [Second] of Contracts § 229, Comment b.) Second, defendant unquestionably conferred a benefit on plaintiff when it delivered the loans it sold together with an assignment to plaintiff of the collateral. (Compare 86 NY2d at 692 [“undisputed” that party seeking to avoid nonoccurrence of condition “has not. . . conferred a benefit upon defendant”]; 86 NY2d at 694 [avoidance of forfeiture rationale presupposes that the party seeking to avoid it has conferred a benefit upon the other party].) Third, “ ‘a court may excuse the non-occurrence of th[e] condition unless its occurrence was a material part of the agreed exchange.’ ” (Id., 86 NY2d at 691, quoting Restatement [Second] of Contracts § 229.)


It is unnecessary to decide plaintiff’s claim that this agreement was in the nature of a building contract, as to which the *12full performance rule has been somewhat relaxed, since he has shown neither <mask> nor the cost of completing the work. In the. case of Spence v. Ham (163 N. Y. 220) plaintiff fell short of full performance of a building contract, and failed to recover for substantial performance because he failed to show the cost of completing the job. The court held that the amount to be recovered for substantial performance is the contract price less a fair deduction for defects and omissions ; and that plaintiff had the burden of showing the amount of such deduction.


The phrase “ all the terms and conditions ” is unmistakable. •It contemplates examining the entire decree, determining the component directives, and ascertaining whether they were substantially performed by the party seeking divorce. Noncompliance with an insignificant provision should not bar a finding of <mask>. Matters which are essentially organizational and optional, such as the noncustodial spouse’s exercise of visitation rights, strictly speaking are not “ terms or conditions ” that by their waiver would constitute nonperformance. (Van Vort v. Van Vort, 62 Misc 2d 981; 16 N. Y. Jur., Domestic Relations, § 878; see Vitale v. Vitale, 37 A D 2d 963.) Indeed, in 1968 the original wording of the statute, “ duly performed ” was changed to “ substantially performed ” in order to avoid the impression that technical but minor noncompliances might bar divorce relief. (L. 1968, ch. 700, § 1.) But, the major mandatory decretal duties imposed upon a party seeking to rely upon the decree as a basis for divorce must nonetheless be “all” substantially performed. Substantial noncompliance is still a disqualifying factor.


But it is insisted on the part of the defendants below, that this issue was an immaterial one ; that as the verdict does not find any specific diminution in the statutory dimensions of the centre arch of the bridge, it might have been the smallest conceivable, and therefore immaterial; that “ the verdict is so vague and uncertain as to every thing touching a forfeiture of the franchise, that no definite conclusion of law can be deduced frbm it;” that “it is wholly insufficient to warrant or authorize a judgment of forfeiture.” We have already seen that this issue was upon the performance of one of the most material conditions of the franchise. The sovereign power that made the grant of the franchise also fixed this condition, as it had a perfect right to do. In doing this, we are bound to suppose that it was influenced by no idle capvice, but by an enlightened judgment of what was mate- [ *556 ] rial to the protection and preservation of all interests *concerned in the grant. It alone possessed at once the power to make the grant, and full discretion in its exercise. Where then is the power, short of that which fixed the condition, that can cither modify its form, or dispenso with its performance ? Who, under the adage oft invoked by delinquents, “ de minimis non curat lex,” will say the precise opening of twenty-five feet between the centre arches of the bridge, prescribed by the legislature, is immaterial; that twenty-four feet, or even some smaller-dimensions, will do as well ? that a <mask> of this condition will satisfy every requirement of law or equity ? Will this court undertake to say so ? Has it any such dispensing power ? When the legislature, which alone could make the grant, and had the exclusive right to judge of and fix its conditions, has said that that opening shall be twenty-five feet, can this court say that any thing less than the prescribed dimensions will satisfy- the- requirements of the giant, or save the grantee from the consequences of a non-per*, forinance of its indispensable conditions ?


Bemembering plaintiff’s letter of October 2d, offering to insert the advertisement for six months, for a price “payable January 1, 1889," and the contract, Exhibit No. 1, which says, “Terms payable in cash, January 1, 1889,” it becomes material to refer to defendant’s Exhibit No. 3, which reads: “Nov. 27, 1888. ■ J. G. Wilson, dr. to Leonard Scott Publication Co., [name under which plaintiff traded:] For advertising ^ page in Nineteenth Century for month of Oct., ’88;” and then follow the names of the nine other magazines, and continues: “$35. Please remit.” The presentation of this bill to defendant on November 27th, with the request to “Please remit,” clearly indicated that plaintiff then considered that he had two separate and distinct contracts with the defendant,—one to publish his advertisement for the month of October, for which the payment-of $35 was then due; and the other to publish for six months, beginning with November, but under which no payment would become due until January following. This was the condition of the case when plaintiff rested, and defendant moved for a nonsuit; for all of these exhibits of defendant were offered and received in evidence *455while plaintiff’s only witness was under cross-examination, and the subsequent proceedings did not better plaintiff’s case. This second contract, to publish for six months in ten journals, for an agreed gross sum of $168, was entire and indivisible; and plaintiff was required to perform the same in its entirety, by publishing the advertisement, as agreed, for the full term of six months, beginning with and including November, 1889; and this he did not do, for the proof shows that the same was published for only five months of the term, and he makes no excuse for his failure to publish for the last month of the term. The only reason, which can be inferred from the record, for plaintiff’s failure to complete the publication is that he was fearful of his pay; but, if defendant had defaulted in making payment at the time agreed upon, the plaintiff should have either discontinued the publication, and sued for what work he had already performed under the contract, and for such damages as he had sustained by reason of the breach thereof, or completed the publication as agreed, and brought his action on the contract. But he has done neither, for he brings his action on an alleged contract which his proof not only fails to establish, but shows that another and different contract existed, which his proof further shows has not been substantially performed by him; as it cannot be said that publication for five-sixths of an agreed term is any more a <mask> of the contract than would be publication for the full term in five-sixths of the designated magazines. In Dauchy v. Tutt, 19 Wkly. Dig. 490, it is said: “The advertisements were not inserted within the stipulated time, and in the full number of papers, nor published the full agreed time in a great many of the papers,—nearly five-sixths of the papers published short time;” and held that the plaintiff could not recover. And Judge Van Brunt says, in Hazzard v. Hoxsie, (Sup.) 6 N. Y. Supp. 295, that a contract to publish an advertisement in the programmes used at three designated theaters is not substantially performed by publication in the programmes used at two of such theaters. It would seem that justice requires that upon the whole case the judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event; and it is so ordered. All concur.


Whether a franchise creates an ‘ ‘ indefeasible interest in the land constituting the streets” (in the language of the Ghee opinion) or whether it is an “ incorporeal hereditament, an easement or a right of way ” (as said in the case against the Empire City Subway Co.), or whether it is merely a license which matures into a property right upon <mask> (as described in Matter of New York Elec. Lines Co.), it is, in any event, either immediately or ultimately an interest "of a proprietary nature in public land. Keeping in mind, as I must, that, in operating its business, the evidence shows beyond dispute that all of the cables and equipment located in or passing through or under the city’s streets are owned and controlled by the telephone company, and also that it has been shown conclusively that all of the physical cables and equipment owned or controlled by the defendant are either located in the Hotel Americana or in the buildings serviced by the defendant, and do not stand or pass through or under the city’s streets at all, it is here that the plaintiff’s reasoning in support of its contention— that the defendant cannot operate by means of the telephone company facilities without the defendant itself being enfranchised by the Board of Estimate- — -falls short of the mark.


On this latter aspect, defendant raises an issue of fact also. Because the condition was stated in the controlling document, the asset sale agreement (appendix A), in generic terms, and not with the specificity of a concrete event which would trigger plaintiffs duty of performance, it is appropriate to consider the materiality question in the context of the broader question of the dynamic involved, and with respect to whether the “specific matter that is the subject of the alleged nondisclosure” (Siemens Solar Indus., supra at 82), here the August 31 draft report, is itself the material part of the exchange or whether it is merely a part of the broader context of disclosure concerning CyTech’s inventory valuation already in plaintiffs hands at the time of closing. The court believes that defendant at least raises an issue of fact whether, in the context of this sophisticated commercial transaction by seasoned parties, and in the context of substantial disclosure contained in the bid documents of *364CyTech’s condition, including the recent declining market for its oak hardwood collateral, nonoccurrence of the condition precedent solely by virtue of the failure to include the very recently obtained draft report, less than an hour before the parties closed, “was a material part of the agreed exchange.” On this record, the question is one of fact for the factfinder. (Jacob & Youngs, Inc. v Kent, 230 NY 239, 243 [1921, Cardozo, J.]; see Sahadi v Continental III. Natl. Bank & Trust Co. of Chicago, 706d 193, 199 [7th Cir 1983]; compare Oppenheimer, 86 NY2d at 695 [albeit on a <mask> issue not present here and where the inferences are not conflicting].) For purposes of this aspect of plaintiffs motion for summary judgment, the inferences on these crucial questions are conflicting. Accordingly, on a theory of summary judgment rescinding the transaction by reason of the nonoccurrence of a condition precedent, plaintiff is still not entitled to a grant of its motion.4


If there is not a <mask> of a contract, but one party accepts the part performance made with full knowledge at the time that substantial performance cannot be made and receives substantial benefit from such part performance, an implied contract arises to pay the reasonable value of the part performance. By the decided weight of authority, recovery may be had for the value of the services actually rendered where the performance of an entire contract for personal services is prevented by sickness or death. (See 10 N. Y. Jur., Contracts, § 336, p. 311.)


On April 19, 2016 Fistes filed a petition for a writ of mandate against the District, naming GDL as a real party in interest. On April 27 Fistes filed an ex parte application for issuance of an alternative writ of mandate and a temporary restraining order. The District and GDL opposed the application. GDL argued it had "begun <mask> and [was] nearing completion of its performance on the Project." (Italics omitted.) On April 27, after hearing argument from counsel, the trial court denied the application, but set a hearing on the petition for November 15, 2016.4


It is often stated as a general rule of law that a condition precedent to vesting of a legacy must be strictly performed. In other cases a <mask> is all that is required. It seems generally that the apparently different results are dictated largely by the intention and purpose of the particular testator as revealed in his will. (Williams on Executors and Administrators [10th ed.], p. 1013; 3 Page on Wills, § 1288; 1 Boper on Legacies [2d Amer. ed.], p. 766.) Professor Page states the rule thus: “ Whether substantial performance, as distinguished from literal performance, is sufficient, is a question upon which there is a conflict of authority, which can be reconciled, in part, by determining in each case from the will what degree of performance testator intended to exact ” (3 Page on Wills, § 1288, p. 768).


However it is abundantly clear from the evidence that plaintiff could not substantially comply with the original contract due to the injury sustained by the dog. Defendant was immediately informed of the injury and knew that <mask> could not be had, that is to say, he knew the dog could not be trained in an injured condition. Yet he permitted plaintiff to keep the dog and care for him, thereby receiving benefits from such part performance as plaintiff could give.


Applying the <mask> rationale, New York courts significantly have eroded the enforceability of waivers generally, including lease waivers of tenant’s rights in summary proceedings; for example, the procedural right of asserting counterclaims and setoffs which do not necessarily have the benefit of constitutional guarantee. (Withattan Realty Co. v H. Abraham, Inc., 18 Misc 2d 239; Levine v Ehrenberg, NYLJ, June 11, 1973, p 18, col 2; Steinberg v Carreras, 74 Misc 2d 32, revd in part 77 Misc 2d 774; Eversman v Okwodu, NYLJ, Feb 25, 1975, p 15, col 4, supra; Seabrook v Commuter Housing Co., 72 Misc 2d 6, supra, [involving inability to deliver occupancy]; Coulston v Pompey Knitting Mills, NYLJ, April 22, 1975, p 17, col 8; Weidman v Tomaselli, 81 Misc 2d 328 affd 84 Misc 2d 782 [right to recover attorney fees upon tenant default]; Colgate Constr. Corp. v Hill, 70 Misc 2d 646 [involving a jury trial waiver in home improvement contract]; Harwood v Lincoln Sq. Apts., 78 Misc 2d 1097, supra; Matter of Meachem v New York Cent. R. R. Co., 8 NY2d 293, 299 [involving waiver of workmen’s compensation].)


In Tunkl v Regents of Univ. (60 Cal 2d 92, 98-101, 32 Cal Rptr 33, 37-38, 383 P2d 441, 445-446), the Supreme Court of California identified several characteristics helpful in determining if an exculpatory agreement is in violation of public policy as follows: "It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public whó seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized <mask> of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” While the court in Tunkl noted that all of these factors need not be present in every case it found that in that case, which involved a charity hospital, a facility similar to the one here in issue, all of the factors were present.


In determining the enforceability of such clause the primary question to be considered is whether in fact such clause is a “penalty” as alleged by respondent tenant. The Rockland County Court recently found a lease provision requiring a $50 late fee if the rent ($405) was not paid within the first 10 days of the month, to be unconscionable and void. (See Spring Val. Gardens Assoc, v Earle, 112 Misc 2d 786.) In addition to using the <mask> standard of Weidman v Tomaselli (supra) to find the clause unconscionable, the court found the late fee clause not within the definition of “rent” as per in Emergency Tenant Protection Act regulations, to which this apartment was subject. The prior lease had a late fee provision of $10 and this new $50 fee had not been approved by the division of housing, as required by law.


In reaching the opposite conclusion, the superior court relied primarily on Cruz , supra , 155 Cal.App.4th 1270, 66 Cal.Rptr.3d 725 and Thompson, supra , 112 Cal App.4th 327, 4 Cal.Rptr.3d 905, in which the courts construed contractual fee provisions broadly enough to include additional claims. We do not find those cases to be instructive. There is no indication the contracts at issue in those cases were adhesion contracts and the provisions at issue broadly allowed for the recovery of fees associated with a " 'civil action ... instituted in connection with this Agreement' " ( Cruz , at p. 1277, 66 Cal.Rptr.3d 725 ) and " 'any dispute under [the] Agreement' " ( Thompson , at p. 333, 4 Cal.Rptr.3d 905 ). (See Cruz , at p. 1277, 66 Cal.Rptr.3d 725 [prevailing party entitled to fees incurred defending tort claims, where lease provided: " 'If civil action is *1099instituted in connection with this Agreement, the prevailing party shall be entitled to recover court costs and any reasonable attorney's fees.' "]; Thompson , at p. 333, 4 Cal.Rptr.3d 905 [provision in share purchase agreement stating, " '[t]he prevailing party in any dispute under this Agreement shall be entitled to reasonable attorneys fees incurred in such dispute,' " was broad enough to encompass tort action for fraud].) By contrast, here, the clause at issue appears in a one-sided <mask>, which must be construed against Citibank, and is expressly limited by the title to collection costs. (See MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 8, 54 Cal.Rptr.3d 724 [provision allowing fees in " 'any collection proceeding' " limited to a discrete legal proceeding that involves collection of the debt].) Moreover, the court in Thompson distinguished between " 'any action' " and " 'any dispute,' " acknowledging that a defense brought as a cross-complaint was not *358an "action," and the provision at issue here refers to "costs and expenses of any legal action" such that Thompson actually supports a narrower interpretation of the Citibank clause. ( Thompson , at pp. 336, 337, 4 Cal.Rptr.3d 905.)


The Sonic II majority opinion focused repeatedly on the need for accessible and affordable arbitration, reasoning that these were key benefits of the Berman process that parties to an arbitration agreement had decided to forgo. We stopped short of defining the requirements for an acceptable arbitration framework, however, and emphasized that arbitration can be structured in various ways "so that it facilitates accessible, affordable resolution of wage disputes," without necessarily replicating Berman protections. ( Sonic II , supra , 57 Cal.4th at p. 1147, 163 Cal.Rptr.3d 269, 311 P.3d 184.) So long as the arbitral procedure is relatively "low-cost" ( ibid . ) and provides a forum for wage claimants "to pursue their claims effectively" ( ibid . ), its adoption in lieu of the Berman process will not, in itself, be considered unconscionable ( id . at pp. 1147-1148, 163 Cal.Rptr.3d 269, 311 P.3d 184 ). In short, when an <mask> requires arbitration, "the unconscionability inquiry focuses on whether the arbitral scheme imposes costs and risks on a wage claimant that make the resolution of the wage dispute inaccessible and unaffordable," thus effectively blocking every forum for redress including arbitration itself. ( Id . at p. 1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.)


The existence of the fourth element of an <mask> in this case is underscored by the fact that the parties did not sign the lease until April 15, 2010, almost a month after the lease’s March 10, 2010 start date. Apparently, defendant had already moved into the apartment before she was given a copy of the lease to read and sign. Clearly, if she had raised any concerns about any particular clause, she would have been forced to move out of her apartment less than a month after she moved in.


Courts of other jurisdictions have refused to enforce arbitration clauses in credit agreements on the grounds of, inter alia, unconscionability or public policy. In Williams v Aetna Fin. Co. (83 Ohio St 3d 464, 700 NE2d 859 [1998]), the Supreme Court of Ohio held that an arbitration clause in an agreement for a home equity loan was unconscionable and unenforceable because of the unfairness of the fees and procedures pertaining to arbitration, because the arbitration clause was found in an agreement having some aspects of an <mask>, and because the arbitration clause itself appeared to be adhesive in nature. In Patterson v ITT Consumer Fin. Corp. (14 Cal App 4th 1659,18 Cal Rptr 2d 563 [Ct App, 1st Dist 1993]), individuals who borrowed money from finance companies brought a class action based, inter alia, on alleged violations of the California Consumer Legal Remedies Act, and defendant ITT petitioned to compel arbitration pursuant to an arbitration clause in the loan agreements requiring arbitration before NAF. In denying the petition to compel arbitration, the court stated: “While NAF’s rules and fees might be fairly applied to business entities or sophisticated investors and to claims for substantial dollar amounts, those same procedures become oppressive when applied to unsophisticated borrowers of limited means in disputes over small claims.” (Patterson v ITT Consumer Fin. Corp., 14 Cal App 4th, at 1666, 18 Cal Rptr 2d, at 567, supra.) The court concluded that the arbitration clause was unconscionable and unenforceable. In Aetna Fin. Co. v McGhee (1993 WL 944559 [Ct Common Pleas, Ohio, Aug. 26, 1993, Sutula, J.]), enforcement of a clause requiring arbitration of disputes before NAF was denied on the ground of unconscionability in view of NAF rules, procedures, and fees. Moreover, it was not clear to the court whether the arbitrations were conducted before genuinely neutral officials or before those who depended on the lender for a “large volume” of their business. In Baron v Best Buy Co. (75 F Supp 2d 1368 [SD Fla 1999]), *418the defendant lenders moved to compel arbitration before NAF of a class action alleging, inter alia, violations of the Truth in Lending Act (TILA) (15 USC § 1601 et seq.), but the court denied their motion on the ground that the arbitration clause was unenforceable and unconscionable. The court concluded, inter alia, that the arbitrator had not been shown to be efficient, inexpensive, and neutral. In Johnson v Tele-Cash, Inc. (82 F Supp 2d 264 [Del 1999]), a borrower brought a class action against lenders, including County Bank, charging violations of the TILA and Electronic Funds Transfer Act (EFTA) (15 USC § 1693 et seq.) by, inter alia, failing to inform him of high interest rates for short-term loans. The court held, inter alia, that the arbitration clause in the loan agreement was not unconscionable under Delaware law, but the arbitration clause contained in the note could not be enforced in regard to class claims under TILA and under EFTA because enforcement would contravene legislative policy to encourage class actions under TILA and under EFTA. In Lozada v Baker Oldsmobile (91 F Supp 2d 1087 [WD Mich 2000], supra), automobile buyers brought a class action against the seller and assignee of retail installment sales contracts, alleging, inter alia, violations of TILA. The court denied enforcement of an arbitration clause in the credit agreements on the grounds of procedural and substantive unconscionability. The court concluded (at 1105), inter alia, “[b]ecause the arbitration agreement prohibits the pursuit of class relief, it impermissibly waives a state statutory remedy.”


"An <mask> is a form contract created by the stronger of the contracting parties. It is offered on a 'take this or nothing' basis." Robin v. Blue Cross Hosp. Serv. , 637 S.W.2d 695, 697 (Mo. banc 1982). There is no dispute between the parties that the lease constitutes a contract of adhesion. In contracts of adhesion the court applies the "reasonable expectations doctrine." Vergano v. Facility Mgmt. , 895 S.W.2d 126, 128 (Mo. App. E.D. 1995) ; Zemelman v. Equity Mut. Ins. Co. , 935 S.W.2d 673, 675 (Mo. App. W.D. 1996) ; Progressive Nw. Ins. Co. v. Talbert , 407 S.W.3d 1, 9 (Mo. App. S.D. 2013). "The law [ ] protects expectations objectively reasonable, as consonant with the purpose of the standard contract -- to avoid bargains over details of an individual transaction to achieve lower cost possible only by mass transaction." Estrin Const. Co. v. Aetna Cas. & Surety Co. , 612 S.W.2d 413, 426 (Mo. App. W.D. 1981). "Only those provision that fail to comport with those reasonable expectations and are unexpected and unconscionably unfair are unenforceable." Swain v. Auto Servs., Inc. , 128 S.W.3d 103, 107 (Mo. App. E.D. 2003). "The reasonable expectations of the parties are gathered not only by the words of the supposed contract, but by all the circumstances of the transaction." Heartland Health Sys., Inc. v. Chamberlin , 871 S.W.2d 8, 11 (Mo. App. W.D. 1993).


“the modern counterpart of the seafarer who attempted to steer a course between Scylla and Charybdis. If he refuses to sign the contract, he is faced with suspension of interest after the mandated 90 day period. If he signs the contract and cannot obtain the required releases, he is faced with a suspension of interest after the 30 day period . . . .We do not find the terms of said partial payment agreement to be ‘fair, honest and reasonable.’ Furthermore, we find that said partial payment agreement, in the instance of a fee owner with tenants who either have a bona fide claim or, in what amounts to legal extortion, contend they have a claim, is a violation of the transcendent requirements that claimants shall be paid just compensation. See, McKinney’s Const. Art. 1 § 7. We find the partial payment agreement entered into between the State and Bobwin Real Estate Corp., Inc. a nullity and legally unenforceable. We find said partial payment agreement in violation of the Constitution of the State of New York. We reiterate our direction that the State shall pay the interest found due upon this award by this Court.” In Sydney Family Corp. v State of New York (99 Misc 2d 731 [1979]), claimant was faced with several interested parties, all *359of whom refused to cooperate with claimant and supply general releases. In Sydney, Justice Silverman held that “the contract at bar, to the extent that it is interpreted to provide for an interest suspension, is an <mask> and unenforceable” (at 736).