72 N.Y.S. 573 | N.Y. App. Div. | 1901
Lead Opinion
Were there no other issue upon the trial than that of waiver which was tendered by the complaint as limited by the bill of particulars, we should be in favor of the affirmance of this judgment because we think the ruling that the plaintiff’s proof under the complaint and bill of particulars was limited to “ the time, place and manner ” therein specified, was right. It is true that the bill of particulars, after giving the time and place, stated that the agreement was, “ to waive the architect’s certificate, a,nd submit all matters in difference to certain persons as arbitrators.” The argument based on this language, however, that two things were thus included, namely, an agreement to waive and an agreement to submit to arbitration, is forced and unsound; for reading the clause as a whole, the necessary construction to be given, and what was evidently the idea intended to be expressed by the pleader, was that it had been agreed to have an arbitration instead of insisting upon the architect’s certificate. When the arbitration was ended, therefore, by the plaintiff, he necessarily ended the waiver and the parties were relegated to their original rights under the agreement.
So, too, with regard to the extra work, we think that the architect’s certificate was required under the contract as a condition precedent to the plaintiff’s recovery for such extra work. The parties by their contract evidently contemplated that extra work might be required, and agreed that it should be within the contract, and that the sum to be paid thereunder should be increased by the fair and reasonable value of such additional work. There is, as the appellant points out, a clause providing that should a dispute arise respecting the true value of the extra work, that was to be submitted to arbitration; but this is not inconsistent with the other provisions that with respect both to the principal work as well as the extra
Upon the questions relating to waiver and extra work, therefore, we think the learned trial judge was right in the rulings made; but there was another issue presented upon the trial, in the disposition of which we think he fell into error.
Although the complaint was based upon the theory of a waiver of the certificate, it will be noticed by paragraph third of the answer that in addition to a denial of waiver the defendant alleged that the architect refused to give his certificate, and that he was fully justified in such refusal by the unsatisfactory way in which the work was done. Thus the issue of the refusal of the certificate and the reasonableness of such refusal was presented for trial, because this being new matter not directed to anything alleged in the complaint, was traversed without a reply and raised an issue to be tried in the action.
On this subject section 522 of the Code of Civil Procedure provides : “ An allegation of new matter in the answer to which a reply is not required * * * is to be deemed controverted by the adverse party, by traverse or avoidance as the case requires.” And Dambman v. Schulting (4 Hun, 50), after quoting this provision, says : “ It is so broad that it secures to the plaintiff the benefit of every possible answer to the defense made by way of new matter not constituting a counterclaim as fully as though it were alleged in the most complete and artistic form. He may avoid it by any evidence properly attended with that result • under the principles of either law or equity.” And in Johnson v. White (6 Hun, 589) it was said : “ The answer in this case does not set up a counterclaim, hence no reply was necessary. * * * Ho reply being necessary to the answer of defendant it was to be deemed denied for all purposes, of the action. Under such a denial what evidence may the plaintiff give in reply to the new matter of the answer % * * * He was entitled to give any evidence that avoided the new matter in the
In the present case, not only was this issue of the reasonable refusal of the architect to give the certifícate presented by the pleadings taken together, but in the cross-examination of the plaintiff’s witnesses the counsel for the defendant endeavored to establish it. As a result, when the plaintiff rested and the motion to dismiss was made, there was some evidence given by plaintiff tending to show that the work was substantially performed, and that the defendant had directed the architect not to give a certificate. In view of these circumstances, we think it may, with considerable show of reason, be said that the conduct of the parties on the trial was to be deemed a consent to try the question of the reasonableness of the architect’s refusal. Thus it was said in Knapp v. Simon
Our conclusion, therefore, is, that upon the record as it stood when the opposing motions were made by the parties, although there was a justification for the dismissal of the complaint upon the ground that the plaintiff had failed to prove a waiver, there still remained this issue as to the refusal of the architect to give the certificate, upon which the plaintiff was entitled to go to the jury. We think that the refusal to grant such motion was error, for which this judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred.
Concurrence Opinion
I concur in the conclusion reached by Mr. Justice O’Brien, but upon a different ground than that suggested by him in his opinion. I think that as limited by the bill of particulars the plaintiff had to prove an agreement made on the 1st of March, 1897, by which the defendant agreed to waive the provision of the contract requiring a certificate of the architect, but I do not understand that the waiver relied upon was solely the execution of the agreement to arbitrate.
Judgment reversed, new trial ordered, costs tv appellant to abide event.
Concurrence Opinion
I concur on the last ground stated in the opinion.