83 N.Y.S. 740 | N.Y. App. Div. | 1903
The judgment in this case will have to be reversed because of errors in the admission of evidence and in the amendment of the complaint. The plaintiff,' as the assignee of one Vantine,' a con-tractor, who had entered into, a contract with the defendant Gerry for the construction of a house, brought this action to foreclose a mechanic’s lien, and the other defendants stand upon his right to recover, as sub-contractors and materialmen. The complaint, among other things essential to a recovery, alleges “ that the said Albert Vantine, contractor, has duly fulfilled all the conditions of said contract on his part to be performed within the time therein specified, and as to such time as the performance thereof (has) been extended by the owner, and on the 14th day of December, 1901, at the time of the filing of the lien hereinafter mentioned and prior to the commencement of this action, the said Albert Vantine became entitled to receive from the defendant Isabel H. Gerry the sum of $2,062.12, which sum has not been paid,” etc. The other defendants made the same allegation in substance in their answers. The defendant Gerry alleged as a separate defense that under the contract the building was to be completed on the 1st day of September, 1901 • that the said contract was not completed at said time, nor has the same been completed, but said Albert Vantine abandoned said work and never fully performed the same; that no certificate. from the architect named in the said contract that the said work had been completed-to his satisfaction, or completed at all, was obtained by said Albert Vantine or this plaintiff before this action. The issue as thus made up was presented at the trial, and it appeared from the evidence that the allegations of the defendant Gerry were true •
The plaintiff’s assignor had entered into a contract which called ' for the certificate of the architect as a condition precedent to the night to recover the final payment. It is not alleged in the complaint that such certificate has been granted, nor is any excuse pleaded why it has been impossible for the plaintiff to secure such certificate, and as the Contract required this certificate the plaintiff could not recover upon an allegation of performance upon proving that the building had been completed without procuring the architect’s "certificate, or showing that it had been unreasonably refused, or that the defendant had waived its production. (Weeks v. O'Brien, 141 N. Y. 199, 203.) But in the case at bar it appears that there is not only a failure in this respect, but that the plaintiff’s assignor abandoned the work, so that unless he had completed the work without any omission so substantial in its character as to call for an allowance of damages, he is entitled to nothing upon the grounds of substantial compliance (McGrath v. Horgan, 72 App. Div. 152, 155, and authorities there cited) except .in subordination to the contract, which permits the defendant to complete the building at the expense of the contractor. (See Fox v. Davidson, 36 App. Div. 159, 162, 163.)
The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs.
Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs. ' • •