11 Misc. 49 | The Superior Court of New York City | 1895
The appeal is from a judgment recovered by the. plaintiff, a building contractor, against the defendant, a religious corporation, for the sum of - $4,343.31, after a trial had before a referee, The recovery was for work and labor performed and materials furnished in and about the erection of a church edifice at Nos. 213 and 215 East Eighty-third
The case appears to be the ordinary one between contractor and owner, and presents the questions which usually arise in actions of that character. The contract contains two clauses material to this appeal, one of which provides that the payments called for by the contract are to be made in each instance on a certificate obtained from and signed by Henry Ehrhardt, the defendant’s architects The other clause provides that any dispute respecting the true construction or meaning of the drawings or specifications shall be decided by said architect, whose decision shall be final and conclusive.
After the plaintiff had done' all the work which he supposed he was required to do to complete the contract according to the true construction and meaning of the drawings or ¡specifications, he applied to and obtained from the architect a ■certificate that he was entitled to the final payment according to the terms of the contract. This provision with respect to the supervision of the work by the architect was intended for •the. protection of the owner at all points by the judgment, ¡¡skill and opinion of the architect. Smith v. Alker, 102 N. Y. 90 ; Kennedy v. Poor, 25 Atl. Rep. 119; Crouch v. Gutmmann, 134 N. Y. 45 ; Smith v. Brady, 17 id. 173. The architect, being the chosen arbitrator, must determine the character ¡of the work under the contract, and his certificate is conclusive thereon unless fraud on his behalf is shown. Byron v. Low, 109 N. Y. 291; Stewart v. Keteltas, 9 Bosw. 261; 36 N. Y. 388; Gay v. Haskins, 8 Misc. Rep. 626 ; 30 N. Y. Supp. 191; Sharpe v. R. R. Co., 6 Moak’s Eng. Rep. 597; Worms v. Mellier, Id. 868; Snaith v. Smith, 7 Misc. Rep. 37; 5Y N. Y. St. Repr. 86.
The defendant assigns as error that he was prevented by the referee from impeaching the certificate of the architect, and our attention in this respect has been directed to folios 402, 404, and especially 405 of the case. The evidence there
Another provision of the contract provides that “ should the owner, at any time during the progress of the building, request any alteration, deviation, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no Avay affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.” Under this provision alterations, deviations and additions were made and were added to the cost of the work. The architect, in certifying to the plaintiff’s right to the final payment, stated that he was entitled to a' payment of $4,041 by the terms of the contract, and as part of the certificate gave figures showing how this amount was made up. ■ He first put down contract price, - $12,965; extra work, $2,041; aggregating $15,006 ; then deducted $10,965 paid on account, leaving a balance of $4,041; which' balance was in turn made up of $2,041 for extra Avork and the $2,000 final payment on the contract. The plaintiff’s claim for extra work Avas in excess of the sum allowed by the architect, who reduced it to the amount stated.
The bill showing the deductions made by the architect and the certificate of the architect were presented to the defendant. The president of the defendant’s board of trustees there
In view of those facts we are satisfied that there was a sub-' stantial performance by the plaintiff of his contract with the defendant, within the meaning of that term as defined by the authorities, and that extra work, to the amount certified by" the architect was done.
The defendant calls attention to the fact that there is a provision in some part of the specifications which provides that extra work shall be done only upon a written order. We find nothing in the record which requires us to pass upon the effect of this provision, and if there were it would,- upon the . evidence, be considered waived. Stout v. Jones, 9 N. Y. St. Repr. 570 ; Porter v. Swan, 44 id. 375.
For these reasons and those stated by the referee, we think the judgment should be affirmed, with costs.
Freedman and Gildersleeve, JJ., concur.
Judgment affirmed, with costs.