25 N.Y.S. 95 | New York Court of Common Pleas | 1893
This action is brought to recover a balance claimed to be due on a building contract and for extra work. The first question to be determined is whether or not the certificate annexed to the case is sufficient to warrant the court, in reviewing the facts on appeal. It is in the foEowing words: “The annexed case contains all the evidence bearing upon the exceptions given (taken) upon the trial.” This is very different from the certificates in Dibble v, Dimick, (Com. Pl. N. Y.) 23 N. Y. Supp. 680, and Hyman v. Friedman, (Com. Pl. N. Y.) 18 N. Y. Supp. 446, affirmed 138 N. Y. 639, 34 N. E. Rep. 512, in both of which the word “testimony” was used in place of “evidence,” which is a word of very different import. “Testimony,” strictly speaking, means the evidence of a witness given under oath, and, even when used in its widest sense, it stül has reference to some living agent as its author; while “evidence” includes not only the testimony of
“Where a question of fact is sought to be reviewed, it should be stated in the case that it contains all the evidence, or all bearing upon the question of fact sought to be reviewed.”
The certificate under consideration substantially complies with this rule. The questions of fact before the court for review arise because of the refusals of the referee to find as requested by the defendant, and the exceptions taken to such refusals, and the certificate conforms to what was said by Macomber, J., in Clark v. Swift, (Sup.) 14 N. Y. Supp. 61:
“Under section 903 of the Code of Civil Procedure it is the duty of the party, where there is conflicting evidence, to request a finding in accordance with the contention of the party, and, in case of its refusal to find such request, it would be the duty of the appellate court to look carefully into the evidence, and to determine whether or not the conclusion reached by the referee was correct.”
“Section 992 of the Code of Civil Procedure in terms precludes exceptions to findings of fact as such; but section 993 declares a finding of fact which is without any evidence tending to sustain it, or a refusal to make any finding reasonably requested, to be a ruling upon a question of law, and subject to exception as such, under section 992; from which it results that the only mode of reviewing a finding of fact of a court or referee, as being against the weight of evidence, is by means of a request to find and an exception to the refusal to find as requested.” Hugg v. Shank, (Sup.) 4 N. Y. Supp. 929.
But if there were no statement that all the evidence upon the question sought to be reviewed was contained in the case, it would still be open to the court to determine that there was no evidence to support any finding of fact duly excepted to. Sewing-Machine Co. v. Best, supra; Halpin v. Insurance Co., 118 N. Y. 172, 23 N. E. Rep. 482, where it was said:
“A statement that all the evidence given on the trial is contained in the case is not essential to present for review in this court a finding alleged to be without evidence to sustain it. The appellant is therefore correct in his claim that the finding excepted to is properly before the court for review, and we must assume that all the evidence introduced on the trial, and bearing upon the fact of occupancy, has been inserted in the case.”
We therefore think we are bound to review the facts as presented by the case, and to determine whether or not the referee’s findings are in accordance with them.
The complaint sets up the contract between the parties and the order of payment, and that every payment was conditional
‘‘I did not know anything about the others [i, e. the later certificates] being given. I never in any instance authorized Mr. Smith to sign my name to those certificates. I can only state that I knew nothing about the final certificates being given. I knew, before they were given, that Smith had given out some of these certificates. I knew McEntyre had money as the work went on, but I never knew about the final certificates, and I never authorized Mr. Smith to sign any certificate for me,”
—And this he repeats emphatically. Hence there was an entire failure of compliance with a condition precedent to requiring payment, and we find no evidence which would lead us to the conclusion that the condition had been waived by the defendant. Certainly, the payments made under the first four certificates, under the circumstances, do not warrant such a result. Even if defendant had full knowledge that these first certificates were given without the architect’s authority, this would not warrant such a conclusion. Mere payment under such circumstances, even without the production of any certificate, would have been no waiver of defendant’s right to require subsequent certificates, which he certainly did. Barton v. Hermann, 11 Abb. Pr. (N. S.) 378; Haden v. Coleman, 42 N. Y. Super. Ct. 256.
We also think the objections to the work as done by plaintiff were well founded, and the demand for the certificates was not a mere pretext. The referee has found a considerable number of distinct variations, changes, and omissions from the designs, some of which, it is true, are not of much importance or of great value, but others are more material, as, for instance, the style of ornamentation, etc. Respondent contends that although the ornamentation in the way of paneling, railings, and cornices, was not as elaborate as required by the specifications, yet that is not a matter of substance, and that ornamentation is merely added to, and not a part of, the house, quite forgetting that any true or tasteful ornamentation must at least appear to be a part of the construction, and not a mere addition. It is quite true such a house might as well protect one from the elements as a more highly