
    William Bell, Respondent, v. Annie Fox and James D. Fox, Her Husband, Appellants.
    Second Department,
    May 26, 1910.
    Contract — building contract — pleading — failure to allege that certificate was procured or unreasonably refused — evidence — failure to perform. , •
    Where the complaint in an action to recover a balance on a building contract fails to allege that a certificate was obtained as called for by the contract, or an unreasonable refusal by defendant to furnish it, the admission without objection of evidence of a refusal to pay admissible on other grounds does not cure the complaint. . '
    Evidence examined, and held, not only to fail to show an unconditional refusal to pay by defendants, but also to show that plaintiff did not perform the contract in many particulars.
    Where a contractor, contrary to the plans and in violation of the law, puts water pipes in a partition, the owners should be compensated therefor.
    Appeal by the defendants, Annie Fox and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of November, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      H. H. Snedeker, for the appellants.
    
      James C. Church [Charles W. Church, Jr., with him on the brief], for the respondent.
   Thomas, J.:

The plaintiff pleaded full performance of his agreement witn defendant Annie Fox to build a house.upon land of which both defendants later became tenants by the entirety, and also indebted-, ness for extra work. The contract provided that the, plaintiff should build a house “in a good, workmanlike and' substantial manner, to the satisfaction and under the direction of James D. Fox, to be testified by a writing or certificate under the hand of the said James D. Fox.” The answer denies performance by the plaintiff- in several respects, and contains a counterclaim for damages. The court found due $170.65 foy extra work and $1;104 pn thp contract, and that the plaintiff duly performed the contract on his part. It is also found that the defendants did not fulfill the contract in several particulars. This court reversed an earlier judgment, and in the opinion it is stated : “ It does, not appear that any writing or certificate under the hand of James D. Fox was ever obtained by the plaintiff, and we fail to find either allegation in the complaint or testimony on the trial that the same was unreasonably withheld.” (129 App. Div. 405.) The opinion notices the contention that defendants did not base their refusal to pay upon the failure to produce the certificate. The .plaintiff urges that this decision did. not preclude the present decree by reason of facts appearing upon the later trial. These facts .appear to be (1) that the checks received on a building loan after inspection by the lender were turned over to the plaintiff in payment of all. installments under the contract save a part of the final payment; (2) that the sole reason given by defendants for non-payment was that théy did hot consider that any more was due; (3) that defendants’ attorney, in his letter enumerating items of work unfinished, did not mention the certificate as reason for non-payment, and that such suggestion was first offered on the first trial; (4) that a refusal to pay involved the .refusal to give the certificate; (5) that the defendants waived the certificate; and (6) that as evidence of waiver was received without objection, omission of sufficient allegations in the complaint were also waived.

The defendants and their attorney asserted that the work had not been done, and1 particularized. If such action or declaration be equivalent to refusal to pay, yet it does not follow that the production of a certificate was waived. It would have been at least illogical had they based a refusal to pay upon the ground that the work had not been done,, and also upon the ground that the certificate that such work had been done had not been furnished. It would be trifling to mention the stipulated evidence of completion while asserting no.n-completion. The plaintiff’s argument is that a refusal to pay is equivalent to an unreasonable refusal to give a certificate. If this position were tenable, plaintiff is not helped because he has not even alleged a refusal to pay. Hence there is no allegation of an unreasonable withholding of the certificate, nor of the alleged equivalent refusal to pay the amount claimed' due. Further than this, there is no evidence that the defendants- unconditionally refused to pay. The plaintiff testified : “ He never refused to pay it, because I never asked him. He said at that time he would not pay me until I fixed that bathroom.” The witness refers to a conversation with Fox. The original specifications required that the bathroom should be finished with Taylorite, presumably a concrete for. floors. This was omitted upon the plaintiff’s representation, as defendants urge, that the wooden floor, on a base of mortar, would comply with the law. As plaintiff states, defendant James D. Fox said the balance of the money was ready for him if he would finish the bathroom in the way he indicated, while the defendant testified that he did not promise to pay on such condition, but offered to bear the expense of complying with the law provided the plaintiff would disconnect the plumbing in. the bathroom. The plaintiff’s contention that the evidence of refusal to pay, if such it be, was received without objection and' cures the pleading is untenable. The evidence was admissible on the question whether the plaintiff had completed the building or in what respects he -had failed.

But there are further reasons for reversing the judgment. The contract provided that the work should be done under the direction of James D. Fox, the husband and agent, and later one of the owners of the property. It is objected-that the contract was not performed in many particulars. The original plans and specifications were modified by the parties before the Contract was made. The plaintiff alleges and the defendants deny that modifications were made subsequent to the contract. Some of the defendants’ objections relate to manifest departures, such as the length Oyf the building. The plans were modified so that there should not be a discrepancy of six inches in length between the two sides. The plaintiff urges that in carrying out this modification it was intended that the whole building should be forty-seven feet, while the defendants claim that the intention was that it should be forty-six feet and six inches.. This is a matter that must have been known to the superintending owner, and the finding favorable to the plaintiff should be sustained. The same may be said of the location of the building! The front of the house was set back several feet from the line indicated by the plans. The defendants could not have failed to know of this change, and there is no evidence of dissent. But it does not follow that the defendants had or were' required to have knowledge of all the detail of the work. It appears that the water pipes in the kitchen were to have 'been placed on the east side of the partition. They were in fact placed under or in the partition, and the plaintiff would excuse it upon the ground that the partition was moved west. The excuse is unreasonable, as such diversion of the partition would remove it from'.and not towards the appointed location of the water pipes. The location of the water pipes in the partition was a violation of law and required correction, and.defendants should be at least compensated for the same. The plans required that the bedroom back of the parlor should be nine feet six inches in depth, but it was constructed eight feet two inches in depth. The plaintiff’s explanation is that the defendants desired the substitution of sliding for folding doors, and that this required more room in the partition. However, the plans allowed four inches for the partition first proposed. ' The room was induced sixteen inches. It is not credible that twenty inches would be used for the purposes of the partition. Some better explanation and disposition of this item should be presented.

The court has found that the contract required that the heads and 'sides of windows and doors should be but were not flashed with tin, There'should be either finding of waiver supported by sufficient evidence or allowance to be made for this item. There is much evidence tending to show the absence of proper and sufficient bridging, which should be carefully considered if a retrial be had. The court has allowed six dollars for failure to enamel the bathtub as required. . This item also shows non-performance of the contract. There is absolutely no evidence to show that six dollars is the proper allowance. It is claimed that it is so stated in the bill of particulars. The bill of particulars, although attached to the respondent’s reply brief, is not a part of the record. It is not necessary to discuss the weight of evidence as to other doubtful items.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Hibsohbeeg, P. J., Bttbe, Rich and Cabe; JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final' .award of costs.  