23 N.Y.S. 604 | New York Court of Common Pleas | 1893
If, because the case does not purport to contain all the evidence, we are confined to the consideration of questions of law, (Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. Rep. 1022,) still, a finding of fact without proof is legal error, (Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. Rep. 482,) which may not be obviated by any presumption as to the actual evidence on the trial, (Van Bokkelen v. Berdell, 130 N. Y. 141, 29 N. E. Rep. 254.) On the close of the case the appellants moved for a dismissal of the complaint upon specific allegations of insufficiency in the evidence to support the action. Moreover, by proper exceptions to find
We are of the opinion, further, that to entitle the contractors to the final payment the architect’s certificate was indispensable. The contract so provides. But the answer is that the architect therein named was dead, and that so the condition is avoided. But another architect was substituted by the owner, and accepted by the contractors, and in plain reason his certificate stood for that of his predecessor. In the absence of all evidence that the certificate was fraudulently or unreasonably withheld, a recovery under the contract is inadmissible. Smith v. Brady, 17 N. Y. 175; Nolan v. Whitney, 88 N. Y. 650; Bowery Nat. Bank v. Mayor, etc., 63 N. Y. 336. The judgment being insusceptible of support upon the ground that the contract was fulfilled and the money ■earned, an attempt is made to maintain it on the principle of Van Clief v. Van Vechten, supra, namely, that upon the default of the contractor the owner proceeded to complete the building pursuant to a provision of the contract. But the infirmity of the position is that no evidence sustains it, and that the conclusion ■of the referee stands avowedly and exclusively on the assumption that the contractors duly performed the agreement, and themselves ■earned the money. The inevitable inference from the evidence is that, upon the abandonment of the work by the contractors, the ■owner chose to treat the contract as at an end, and proceeded to put his property in condition for, profitable use. In Murphy v. Buckman, 66 N. Y. 297, the provision in the agreement being identical with that before us, the owner gave the three days’ notice ■of election to complete the work himself, and so renounced the right to insist upon a forfeiture by the contractor. In Van Clief v. Van Vechten, supra, the owner, in his answer, counterclaimed an allowance for completing the building, and the evidence showed that he took possession and completed it pursuant to the contract. In the case at bar the owner gave no notice of election, and made no demand in pleading on account of his expenditures in completing the building, and the proof fails to establish that he did finish it in conformity to the contract. Indeed, upon the evidence, it is not apparent that the building is yet completed.
We may not, at this stage of the litigation, uphold the judgment upon a theory and state of fact of which no hint was given at the trial, and which are directly in conflict with the findings and conclusions on which the referee rendered judgment. Assuming for argument, however, that the defendant owner did elect to complete the building under and pursuant to the contract, still, the