82 N.Y.S. 1082 | N.Y. App. Div. | 1903
The plaintiff entered into a contract with Charles Broadway Eouss, whereby the plaintiff undertook to perform certain mason and carpenter work on a building to be erected for Mr. Eouss, and in the alteration and extensión of another building owned by him. This action is brought to recover $11,505.30-as the value of extra work, over and above that provided for in the contract, which extra work is alleged to have been performed at the request of Mr. Eouss. Upon the trial, at the close of the evidence on both sides, the complaint was dismissed, and from the judgment entered upon the dismissal, and an order denying his motion for a new trial on the minutes, the plaintiff has appealed.
The appeal can be disposed of most conveniently by considering the points made by the respondent in support of the dismissal.
The first is, that the plaintiff was not entitled to pay for extra work without proof of a written order from the architect for the same. The contract provides that “ no extra work will be allowed in any case unless itemized estimate is submitted by contractor and architect’s' order in writing is given for the same.” The answer to this objection is that as to the extra work thus done there was proof tending to show that the requirement.was waived by the architect, and by the provisions of the contract the architect was made the agent of the owner and had authority to waive such requirement in his behalf. Article 1 of the contract declares that the contractor shall provide all the materials and perform all the work mentioned in the specifications and shown on the drawings, “ under the direction and to the satisfaction of William J, Dilthéy, architect, acting for the
What has already been said disposes of the respondent’s second point, that “ the architect, as agent of the owner, had no authority to waive the provision of the contract requiring a written order for •extra work.” The third point is that the plaintiff was not entitled to recover without the production of a certificate of the architect as to the amount due for extra work. This is based upon the provision in the contract that “ all payments shall be made upon written certificates of the architect to the effect that such payments have become due.” But if the extra work for which this suit is brought was done by the oral direction and with the sanction of the architect, empowered to represent the owner as his agent, and the architect refused to certify that the contractor was entitled to payment of the reasonable value thereof, such refusal would be without any justification and cannot be available to the owner as a defense. Where a provision for a certificate is contained in a contract like this, the ■contractor is excused from producing the certificate if he shows that it was refused unreasonably or in bad faith. (Bowery National Bank v. Mayor, 63 N. Y. 336.)
Finally, we ‘come to the proposition embraced in the fourth and ■fifth points of the brief for the respondent, that the work for which the plaintiff seeks to' recover was not extra work but was covered fiy the contract and specifications. Counsel on both sides treat the
In regard to the first item, the mason’s specifications show that it-was contemplated by the owner that the northerly wall of the old building should act as a shoring support while the columns were-, being set in the new building. In the progress of construction,, however, it became apparent that the wall was not available for such purpose; and because it could not thus be utilized, the extra-work included in this item of the plaintiff’s claim was rendered necessary. It could not have been within the contemplation of the-parties as essential at the time when the contract was made, because the language of the mason’s specifications on this point expressly declared that the north wall was to furnish the requisite support “ The present northerly bearing wall to act as shoring supports while= setting columns.”
The plaintiff’s claim to be allowed the second item for extra work, done in shoring and underpinning the adjoining north wall is based, upon the statement in the mason’te specifications that “ the depths of independent foundations on north property are below new cellar-floor.” There was a conflict of evidence as to what was the fact in. this respect. I think this issue should have been submitted to the* jury. The plaintiff was entitled to rely upon the representation, quoted as to the depth of the foundations on the north property,, and to regard any work as extra which was rendered necessary by reason of the fact, if the jury found it to be the fact, that the representation was incorrect.
The third item is denominated the bulkhead claim by counsel—a. bulkhead in this sense being “ a sort of superstructure or cupola”' on the old building. While some of the work included in this item-may perhaps be regarded as falling within the contract, I think the greater portion of it was outside. Lastly, the item for the tempos
To recapitulate, my conclusions with reference to this appeal are as follows:
(1) The work for which the plaintiff seeks to recover in this suit was for the most part not covered by the specifications. This conclusion is subject to a possible exception in regard to some of the work included in the third item of his claim and'to the view which the jury may take as to the relative depth of the foundation of the adjoining building, the shallowness of which constitutes the basis of the second item of the plaintiff’s-claim;
(2) The contract bound the plaintiff to furnish estimates of extra work and obtain the written consent of the architect therefor;
(3) The architect’s agency for the owner was broad enough to authorize him to waive this requirement;
(4) The jury should have been allowed to pass upon the question whether he did waive it or not, together with the other issues of fact indicated in this opinion, as well as the value of the work.
- If these conclusions are correct, it follows that there must be a new trial, and I so advise.
Woodward, Hirsohberg and Hooker, JJ., concurred; Goodrich, P. J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.
