49 A.D. 298 | N.Y. App. Div. | 1900
This action was brought to foreclose a mechanic’s lien for a balance of $586.89, alleged to be due the plaintiff under a contract to do the work and furnish the materials necessary in plumbing defendant’s building.
The defendant, in his answer, denied the material allegations of the complaint, and alleged that the plaintiff had failed to perform the contract by furnishing the materials and performing the work therein specified. At the trial it was conceded — at least there was no dispute between the parties — that the plaintiff did not furnish certain materials of the kind and quality called for by the contract, but he claimed that in each instance where a change was made in the contract, su,ch change was made by the authority and direction of either the defendant himself or his architect, and substantially all of the testimony introduced by both of the parties was directed to the issue as to whether the defendant or his architect had consented to the changes which were made. The trial court found, as a fact, that the plaintiff, while performing the work, made certain changes and alterations, but that the same were made “ with the consent and approval of the defendant and under the direction of the architect, and that the architect was authorized by the defendant to direct such changes to be made.” We are entirely satisfied, after a careful consideration of the record, that this finding is abundantly sustained by the evidence. To demonstrate this it is only necessary to consider a few of the more important changes which were made and of which the defendant complains.
(1) By the contract and specifications, which were made a part of it, the plaintiff agreed to furnish and place in the kitchen a 150-gallon boiler. He furnished instead a 100-gallon boiler, but he testified that he procured and set up, in the first instance, a 150-gallon boiler; and this does not appear to have been disputed, and, after he had done so, he notified the defendant, and asked him to select the range
(2) The defendant claimed that the plaintiff failed to perform the contract by furnishing a certain kind of water pipe called for by the specifications, but as to this change the plaintiff testified that he first had .a conversation with the defendant about it, and that the defendant then said to him, “ You go and see my architect, Mr. Wagner; I don’t understand anything about plumbing; that is what I got an architect for. * * * You do whatever Mr. Wagner tells you, and I will agree to whatever Mr. Wagner tells, he knows about plumbing, I do not; that is what I have an architect forthat the plaintiff then talked with the architect and by his direction the change was made. And the plaintiff was corroborated in this respect by the architect. It was also made to appear that the pipe furnished was equal in value to that called for in the contract.
(4) It appeared that certain valves, known as Jenkins valves, were not furnished in all cases where required by the specifications, but there was evidence to show that the valves furnished were of equal quality; that this change was made by the direction of the architect, in order that the completion of the work might not be delayed, as the Jenkins valves could not be obtained from the manufacturer at the time they were required.
(5) As to the number of faucets being changed from three to two, it appeared, from the testimony of both the defendant and the architect, that the change was made after consultation of the plaintiff with the architect and by the latter’s direction.
Several other deviations from the contract were claimed by the defendant, but they were of a trivial character, or what has been said of the foregoing is equally applicable to them. It is sufficient to say, without considering them at length, that they were, in each instance, made by the direction or with the consent of the architect, and the contract between the parties specified the architect and required that the work should be done to his satisfaction. The architect was employed by the defendant to supervise the construction of the building in all of its details. This the defendant admitted on the cross-examination. It was neither alleged nor proved that the architect acted fraudulently or collusively, and, in the absence of such allegation or proof, he had authority to consent to the changes complained of, and, having that authority, it is immaterial
As already indicated, the evidence sustained the finding of the trial court that the plaintiff performed his contract, except so far as it was waived by the defendant, and it, therefore, follows that the judgment is right and must be affirmed, with costs.
Barrett, Rumsey and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.
Judgment affirmed, with costs.