44 N.Y. 143 | NY | 1870
It does not appear, from the evidence, that there were any alterations, deviations, additions or omissions from the contract, under article third of the contract; and, hence, there was no dispute as to extra work, or work omitted, to be settled as provided in article fifth. The work provided for in the contract was to be done under the direction and to the satisfaction of the architects. 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 agreed to abide by the determination of the architects. The plaintiffs were bound, as a condition precedent to final payment by the defendant, to procure the certificate (if it was not impracticable to get it without their fault); and, whenever they did get it, the defendant was bound to pay, unless he could show that the certificate was obtained by fraud or mistake. There was no attempt to show that the certificate was not given in good faith; and it concludes the rights of both parties. (Butler v. Tucker, 24 Wend., 449;Smith v. Brady,
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." If there was no other answer to this, it would be a sufficient answer that the defendant did not place his objection to pay on this ground. He paid $1,000, without any objection to the form of the certificate, and finally objected to paying any more because the work was not completed according to contract. But the certificate is, in substance, all that 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 *146 the architects had certified that the work was all completely done, and that the builders were entitled to the last payment. The contract prescribes no precise form for the certificate; and all that was required was, that the certificate should be, in effect, what the contract required.
The judgment should, therefore, be affirmed, with costs.
All concur for affirmance.
Judgment affirmed, with costs.
