By the Court, Geo. G. Barnard, J.
In construing the agreement under which the claim is made by the plaintiff to determine the sufficiency of the excuse which the plaintiff *83presents to justify him in his failure in entire performance, it will he necessary to consider the relations of the parties at the time of its execution. There were really three parties interested in it; the plaintiff, who was "the contractor to do work; the defendant, which owned the franchise and procured the work to be done, and indirectly the city of blew Tork. The city was to establish the grade upon which it would, of course, require the defendant’s road to be constructed, and also that it should be so constructed as not to interfere with the unquestioned rights of the city in any other respect. Ludlum is the surveyor of the city, and he is made the person, as city surveyor in the contract, whose opinion is to govern and control the work, and whose certificate that the same is completed “under his directions and to his satisfaction,” is to entitle the plaintiff to payment. Under this contract, the plaintiff entered upon its execution and does the work he agreed to do, except the repaving with cobble stones a portion of the space between the tracks which he was bound to do by the contract. He employed the men to do this, but they were stopped at a certain point by the city surveyor, who drove a stake and directed that no paving should be done by the plaintiff’s men beyond, “as below that was to be paved with Belgian pavement,” and that there was a contract then made by the city for that purpose. This was in point of fact true, and the city did lay Belgian pavement from the point where the city surveyor directed the plaintiff’s men to cease. I think Ludlum had power under the contract to give this direction. He was the very person appointed in the contract by the parties to provide that the work did not conflict with the municipal government of the city. His order was just and proper. It arrested the plaintiff from doing useless work at the expense of the defendant. It saved the defendant from paying the expense of useless work. The referee has allowed the defendant for it upon the contract price. The defendant was alone benefited by the omission, and the defense of non-performance in the particu*84lar item alleged would be hard and even cruel if technically right.
[New York General Term,
May 2, 1865.
It is not claimed but that the contract was faithfully performed in every other respect. Certificates of such performance have been given by the city surveyor to that effect, which have been furnished to the defendant. The final certificate that the contract has been entirely performed can not be furnished because of this omission to pave a small strip by direction of the surveyor.
The plaintiff, however, being justified in his non-performance in that particular, it of course becomes unnecessary to procure and file with the defendant that certificate as a prerequisite of his recovery.
The judgment should be affirmed, with costs.
Ingraham, Olerhe and Geo, G. Barnard, Justices.]