118 N.Y.S. 172 | N.Y. App. Div. | 1909
Tlie mechanic’s lien was tiled by one Michael Fuchs, the plaintiff’s assignor, against premises Fo. 381 Broome street, borough of Manhattan, Few York, owned by the defendant. It was for work and labor performed and materials furnished pursuant to a contract in writing between the defendant, as party of the first part, and the plaintiff’s assignor, as party of the second part, made on the 16th day of August, 1905, by which the latter undertook to erect a seven-story building on the premises in question, pursuant to drawings and specifications which were made a part of the agreement, and to do all of the work and furnish all of the materials with .the exception of “ the installation of steam heating apparatus and electric elevators for passenger and freight service, and all other electric work in said building,” for the gross sum of $34,739. Plaintiff’s' assignor agreed to “ perform the work, labor and services under this contract in perfect accord and in connection with the other contractors who shall be employed to install the steam heating apparatus and1 the electric elevator and other electric work,” and to facilitate such contractors to the full extent of his power in the prosecution and finishing of the work, labor and sendees agreed to be performed by them and the materials agreed to be furnished in connection therewith,” and to “ construct said building so that the steam heating apparatus and elevators may be installed in the most expeditious and thorough manner.” The building was to be completed on or before the 31st day of December, 1905, and it was expressly provided that time was to be of the essence of the contract. It was further provided that the contractor should forfeit and pay the sum of twenty-five dollars as liquidated damages for every day he should be in default in completing the work within the.time specified, and on this point it was further provided as follows : “ and the party of the second part shall not set up or allege .to excuse or justify any such default the neglect or omission of any contractor or other person employed on the said premises, unless he can do so rightfully, and then only in case he shall have given written notice of such neglect or omission to the superintendent, and for as many days as may elapse between the delivery of such notice and the doing of the work stated in the notice to have been neglected or omitted. The time in which the workmen and mechanics on the
“Flue last payment shall not be payable unless the superintendent shall certify in writing that tins- contract has been fully performed and- the work finished, completed and1 perfected in every way and respect to-Ms full satisfaction., and that all damages and charges which should or may be paid by the party of the- second1 part have- been deducted from the said payment, and also a certificate from the party of the second! part that all" claims and demands for extra work and^otherwise, of any nature or kind, in connection with*713 this contract have been presented -to the superintendent and are included in the said payment or payments.”
By the express provisions of the contract, payments .were to be made in ten installments from time to time as the work progressed from stage to stage as therein specified. The first five installments were fully piaid. The sixth and seventh installments were $4,000 each. They were settled by the payment of $2,000 in cash on each, and the promissory note of the owner for the remaining $2,000 payable in four months. These notes aggregating $4,000 and the eighth installment of $2,239, the ninth of $4,500, and the final installment of $4,500, together aggregating $15,239, have not been piaid. The contractor performed extra work for which he has been allowed by the referee the sum mf $140. The referee thus found that the balance unpaid on the contract together with this extra work was ,the sum of $15,379, It is alleged in the amended eompilaint that the plaintiff’s assignor “ duly fulfilled and performed all the conditions of said contract on his part to be pier-formed” except as therein alleged. The only exceptions to this •claim that the work had been fully performed in accordance with the requirements of the contract and that the conditions of the contract had been duly kept and performed by the pilain tiff’s assignor, found in the amended complaint, are with respect to time of performance and to obtaining the certificate of the superintendent and architect. Concerning the failure to perform within the time specified, it alleges excuses by which the completion of the work was •delayed without fault on the part of the pilain tiff’s assignor until the 15th day of March, 1906, and with respect to the certificates it ■alleges that they were “ unreasonably, unjustly and unfairly ” withheld and refused. No waiver of performance of any provision of the contract on the part of the defendant is alleged, nor is there any ■allegation that the pilain tiff’s assignor was pire vented from performing .any part of the work by any act on the part of the defendant ■or his agents or servants with the exception of the provisions concerning the time of completion. Neither the plaintiff nor her assignor procured the certificates of the superintendent .or architect for any piart of the amount unpaid on the contract as required by the contract. The procurement ,of certificates on the installments paid was waived by not being required; and doubtless the procurement of the cer
“ Mr. Hill: The plaintiff asks leave to amend the amended complaint to conform to the proofs. The Referee: Motion granted. [Exception.] ”
It does not appear that any formal amendment was drafted or served pursuant to this leave of the court, and it is difficult to determine what was accomplished thereby or to' see how it avails the plaintiff. The only claim made by the learned counsel for the plaintiff with respect to it is that in effect his amended complaint has been amended so as to allege substantial performance instead of complete performance of the contract. Assuming, but without-deciding, that the leave of the court thus granted had that effect, still I am of the opinion that the plaintiff is not entitled to recover. The referee has found that there should be deducted from the unpaid balance of the- contract' price and the value of the extra work the sum of $6,885.33 on account of the failure- of the contractor to perform certain items of work as required by the contract, plans and specifications as construed and interpreted by the superintendent and architect, and his.interpretation is confirmed by the decision, in that the deduction is made from the contract price of the work on account thereof. The items on account of which this amount has been deducted aggregate twenty-six, and they vary in amounts from $2 to $1,600. The respondent. not having appealed, it must be •assumed that these deductions were made on account of the failure of the contractor to fully or substantially perform the contract. It thus appears that lie has failed to perform more than nineteen per cent and nearly twenty per cent in value of the entire contract work. One item of $53.33, deducted on account of the failure of the contractor to procure accident insurance for the benefit of - the defendant, should not be deducted in determining the percentage of work
It cannot be held that a superintendent and architect who refuses in, .the circumstances here disclosed, to certify that the contractor has performed his contract obligations, is guilty of arbitrarily or unreasonably withholding such certificate. The architect’s certificate was a condition' precedent to the right of the plaintiff to recover. We are of opinion that on the facts as found by the referee the judgment must be reversed, for it cannot be maintained-that the contract -.was either completely or substantially performed, or that the plaintiff is excused from procuring the certificates.
We are also of opinion that the contractor failed to comply with the contract with respect to glass furnished for the windows in “ gable walls on either side and rear.” There is a special provision that, these were to be of wire glass. This provision was complied with; but another was riot. There was a .special provision in the specifications requiring that French sheet glass should be used in the front windows. There was still another provision of the specifications requiring that all glass to be used in the windows should be of the “ best clear American cylinder glass.” This provision necessarily related to all of the windows other than the front windows, in which French glass was to be used, and it, therefore, embraced the windows in the gable walls on either side and in the rear. The undisputed evidence shows that the glass used in the windows in the gable walls and in the windows in the rear of the bijilding was not clear but was translucent. The learned referee with respect to. this' claim took the view that the- glass admitted all the, light, necessary in view of the use to which the building was put. The attention of the contractor was drawn to this point before he put in the glass, and a sample of the kind of glass which the owner desired was presented to him and. he was requested1 to use it. To this request he replied: “ It don’t call in the. specifications for wire glass going to be selected by the owner. Whatever the specification calls for you should have.” It would have cost about $2,647.75 to
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. •
