19 N.Y.S. 230 | New York Court of Common Pleas | 1892
The action was brought to recover for work, labor, and services rendered and materials furnished for and at the request of the defendant in the removal and rebuilding of the foundation intended for the mausoleum to be erected for him at Rosedale Cemetery, Orange, N. J. The defense was that such services were performed and' the materials furnished under a written contract, pursuant to the terms of which payment was only to be made upon production of the architect’s certificate of approval, which had been omitted. The evidence taken upon the trial is not returned to us, and we are therefore to accept the facts as they were found by the referee, and to inquire only whether those facts sustain the conclusion that plaintiff is entitled to the judgment appealed from. Schwartz v. Weber, 103 N. Y. 658, 8 N. E. Rep. 728; Travis v. Travis, 122 N. Y. 449, 25 N. E. Rep. 920.
It appears that on August 30, 1888, the parties entered into a written contract by which plaintiff undertook “to erect and finish the new building known as the ‘Henry A. Potter Mausoleum,’ at Rosedale Cemetery, Orange, N. J., agreeably to the drawings and specifications made by John P. Hardenburgh, Jr., architect, and signed by the parties, and hereto annexed, within the time aforesaid, in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of the said architect, to be testified by a writing or certificate under the hand of said architect,” and to “find and provide such good and proper Clark’s island granite as shall be proper and sufficient for the completing and finishing all the said granite work as per three-quarter inch scale drawing made by the architect, for the sum of four thousand four hundred dollars, ($4,400.00.)” It was also agreed by the parties that payment of
It is conceded by respondent’s counsel, and too well settled in principle and by authority to admit of any dispute, that if one person agrees to perform services and furnish materials for another, under the direction of and subject to the approval of a third, to be attested by his certificate in writing before payment shall be required to be made, the production of the certificate will constitute a condition precedent upon the performance of which the right to enforce payment is dependent, and that unless the certificate is produced or