27 N.Y.S. 379 | New York Court of Common Pleas | 1894
The action was brought to foreclose a mechanic’s lien, and the plaintiff prays judgment of foreclosure. The answer sets up counterclaims for delay in the completion of the work and for the cost of finishing it. We can find no certificate that all the evidence is contained in the case as printed, and therefore can only review the questions of law presented by it. See authorities cited in Howe v. Woolsey, 27 N. Y. Supp. 377, (handed down herewith.)
The exceptions taken to the admission or exclusion of evidence by the defendant during the progress of the trial raise the single question as to whether the final certificate given to plaintiff by defendant’s architect was conclusive and binding on defendant in regard to the character and final acceptance by him of the work ■done and materials furnished under the written contract. The appellant contends that it was not, as the certificate was not in the terms in which it was provided by the contract it should be -couched. The contract, among other things, provides for payment as the work progresses, arid also a final payment, and then contains the following:
“It being understood that the final payment shall be made within thirty days after this contract is completely finished: provided, that in each of the said cases the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his ■satisfaction.”
The certificate was in the words and figures following:
“No. 2,117. New York, March 19th, 1891.
“This is to certify that there is now due to John Snaith from George D. Smith the final payment on his contract for work at 48 East Fourteenth street, the sum of §1,169. R. H. Robertson, Architect.”
“Received payment.”
Appellant contends this certificate is not a compliance with the terms of the contract, and does not conclude the defendant from ■questioning the character of the work performed and the materials furnished, the complete performance of the contract, nor the fact of delay on the part of the plaintiff beyond the time allowed -in the agreement, and his consequent right to recover for such delay. He cites, in support of this contention, Smith v. Briggs, 3 Denio, 73, and Stewart v. Keteltas, 36 N. Y. 388. In the' first of these cases, the contract required as a condition precedent to the payment a certificate from the architect that the work was “fully and completely finished according to the specifications.” Instead -of giving any certificate, the architect wrote the owner a letter, in
“The last payment was not to be made until the plaintiffs obtained the certificate of the architects to the effect that all the work was completely finished. _ Both parties [in that case as in this] agreed to abide by the determination of the architects. * * * There was no attempt to show that the certificate was not given in good faith, and it concludes the rights of both parties. * * * It is claimed, however, that the certificate is not in proper form, because it does not in terms certify that ‘the work was completely finished.’ * * * But the certificate is, in substance, all the contract requires. Plaintiffs were entitled to the $1,800 when the architects should certify to the effect that the work was all completely finished, and not before. The architects certified that the last payment was due according to the contract. This is clearly the same, in effect, as if the architects had certified that the work was all completely done, and that the builders were entitled to the last payment.”
Turning to the contract in this case, we find that the work included in the alterations and additions mentioned therein should be well and sufficiently performed and finished agreeably to the drawings and specifications of the architect, and under his direction, and to his satisfaction. The contract expressly provides that in this supervision the architect acted as agent for the defendant. It also provides that, in event of any doubt or question arising respecting the true meaning of the drawings or specifications, reference should be made to the architect, whose decision should be final and conclusive; also that if, in the course of the work, any alterations should be required, a. fair and reasonable valuation cf the work added or omitted should be made by the architect, or referred to arbitrators. It further provides that upon receiving notice from the architect to that effect, the plaintiff, within 24 hours thereafter, should take down all the portions of the work the architect should condemn as unsound or improper, or as in any way failing to conform to the conditions of the contract; that all damages, etc., caused by delays on the part of either party were to be fixed and determined by the architect or by arbitration. There are various ether provisions of the contract, which in certain contingencies make the architect the alter ego of the defendant, or the umpire' between him and the plaintiff: and also a covenant whereby the plaintiff agreed to deliver to the defendant, ready for use, the first story of the building in question on or before the thirtieth day, reckoning frem the day of beginning, provided the owner agreed to furnish, if necessary, the tarpaulins to protect the building from the action of the elements.
In the light of the foregoing decisions, we think there can be no doubt, but that the contract made the architect named therein the agent of the owner, and that his decision upon the questions in controversy in this case was final, and the certificate, although it does not contain the very language of the contract, does so by necessary implication, and is just as binding upon the parties as if the very words of the contract had been employed, and it had certified that all the work upon the performance of which the payment
But even if our conclusions on this question are erroneous, still we think no substantial error was committed by the court below in refusing to allow the defendant anything upon his counterclaim for delay. By the terms of the contract, possession of the premises in question was to be given to the plaintiff, and the lines and levels of the building furnished him, on or before the 20th day of November, 1890. This was not done by him, and could not be, because he himself did not get possession of them until about the middle of December following. This threw the work over to a more inclement season of the year, and one in which occur the Christmas holidays, making it much more difficult to procure workmen at that-time, and necessarily delayed the work for more than the 30 days contemplated. In addition to this, when work upon the building had been commenced, it was found that an iron girder in the old building had to be removed, and walls taken down, in order to complete the floor according to the specifications, which involved extra work, and two weeks’ delay, according to the architect’s testimony, and which was not contemplated by the contract, and necessarily prolonged the work. It also appears from the evidence that the defendant did not furnish the tarpaulins necessary to protect from the weather, although it was bad. While it is true that.where time is of the essence of the contract, and one makes a contract to be performed within a certain time, he is bound to do it by that time, and nothing will excuse him from doing it unless the delay arises from acts of the other party to it, in the contract under consideration such delay was expressly provided for. Besides, the defendant himself was first guilty of a breach of the conditions of the contract by not delivering possession for a month after the time agreed upon, and not furnishing the tarpaulins. In Franchi v. Collendar Co., (Com. Pl. N. Y.) 13 N. Y. Supp. 294, we held that
After the evidence was all in, and the court had practically rendered its decision, the plaintiff stated in open court that he waived the mechanic’s lien, and asked for a personal judgment only, whereupon the defendant moved to dismiss the complaint upon the ground that it appeared that the plaintiff had no lien, and that he was entitled to a jury trial, which was denied, and defendant excepted. The' defendant asked too much. He was not entitled to a dismissal of the complaint merely because the plaintiff failed to prove his lien. If the complaint contains an equitable, and also a legal, cause of action, and the plaintiff, upon the trial cf the former, fails-in establishing a case entitling him to relief, he has still a right to a trial of the legal cause of action set out. In such case the defendant is not, therefore, entitled to a dismissal of the complaint until the latter has been tried. Beck v. Allison, 56 N. Y. 366, 373; Sternberger v. McGovern, Id. 12; Hawes v. Dobbs, 137 N. Y. 470, 33 N. E. 560. In this case the complaint set out a complete cause of action for work, labor, and services performed and materials furnished, irrespective of the allegations contained in it entitling the plaintiff to equitable relief, and it would have been error to have dismissed the complaint on the grounds stated in the-motion.
Defendant also contends that the form of the judgment is incorrect. But in this he is clearly in error. Chapter 342, Laws 1885, § 15, especially provides:
“Whenever in any action brought under the provisions of this act, any claimant shall fail, for any reason, to establish a valid lien, he may nevertheless recover therein judgment against the party or parties to the action for such sum or sums as may appear to* be due to him, and which he might recover in an action upon a contract against the said party or parties.”
Even prior to this provision it was held that personal judgment might be recovered in a mechanic’s lien action. Schaettler v. Gardiner, 47 N. Y. 404; McGraw v. Godfrey, 56 N. Y. 610; Darrow v. Morgan, 65 N. Y. 338; Thomas v. Sahagan, (Sup.) 10 N. Y. Supp. 874. The judgment should therefore be affirmed, with costs. All concur.