113 N.Y.S. 231 | N.Y. App. Div. | 1908
The contract in this case provided that' the building should be well and sufficiently erected and finished agreeably to the drawings and specifications made and signed by the parties, and thereto annexed, within the time specified therein in a good workmanlike and substantial manner to the satisfaction and under the direction of James D. Fox, to be testified by a writing or certificate under the hand of James D. Fox. It does not appear that any writing or certificate under the hand of James D. Fox was ever obtained by the plaintiff, and we fail to find either allegation in the complaint or testimony on the trial that the same was unreasonably withheld. It seems to us that such a certificate was a condition precedent under the contract. The learned counsel for the respondent contends that the
The point is also made that the defendants in this action did not base tlie refusal to make payments under the contract upon the failure to produce this certificate, and we are cited to Tilden v. Buffalo Office Building Co. (27 App. Div. 510). But that case does not go so far as the learned counsel for the respondent contends, because it deals not with the omission of the certificate, but with the proper form thereof.
The judgment must be reversed and a new trial be granted, with costs to abide the final award of costs.
Woodward, Jenks, Gat nor, Rich and Miller, JJ., concurred.
Judgment and order reversed on questions of fact and of law, and new trial granted, costs to abide the final award of costs.