
    Alonzo E. Smith, Respondent, v. Charles W. Wetmore, Individually and as Trustee for Himself and his Associates, Oliver L. Jones and The Oyster Bay Canal and Dock Company, Appellants, Impleaded with The Seawanhaka Corinthian Yacht Club.
    
      Contract — an engineer’& unreasonable refusal to give a certificate cannot be shown under an allegation of performance — complaint amended at the Appellate Division.
    
    In an action brought to foreclose a mechanic’s lien for work done under a contract, providing for the payment of the contract price upon the presentation by the contractor of an engineer’s certificate showing the quantity, quality and value of the work, evidence that the engineer unreasonably refused to give the certificate is not admissible under an allegation of the complaint that the plaintiff had substantially performed the contract.
    Where the proof given upon the trial of the action is sufficient to sustain a finding that the certificate was unreasonably refused, the Appellate Division may, in support of a judgment in favor of the plaintiff, presume that the trial court made such a finding, and treat the complaint as amended.
    Appeal by the defendant, Charles W. Wetmore, individually and as trustee for himself and his associates, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 12th day of July, 1898, upon the decision of the court-rendered after a trial at the Queens County Special Term.
    
      George W. Weiffenbach and J. Langdon Ward, for the appellants.
    
      Henry A. Monfort, for the respondent.
   Willard Bartlett, J.:

This is a suit to foreclose a mechanic’s lien, and arises out of a contract for the construction of a canal and a basin in the harbor of Oyster Bay, on Long Island. The complaint alleged, and the trial court has found, that the work required to he done by the plaintiff under the contract was substantially completed, and that there is due to him a balance of $7,274.67 on account of said work. The' defendants deny that the plaintiff had fulfilled the conditions of the contract on Ills part, either substantially or in any other manner. The evidence upon this issue was exceedingly conflicting. It was fully discussed on the oral argument, and we have carefully read it through since, without finding anything which would justify us in holding that the learned trial judge was wrong in deciding that there was a substantial performance of the contract.

There is a question of law in the case, however, which requires consideration. The contract contains a provision to the effect that when all the work shall be completed in accordance with the specifications, and to the satisfaction and acceptance of the engineer employed by the defendant Wetmore, there shall be a final estimate made by the engineer of the quality, quantity and value of said work, when the full amount appearing due to the contractor “ shall be paid to him at such time and place as he may designate upon his presenting the said engineer’s certificate of the amount,” etc. The plaintiff did not obtain this certificate, nor did the complaint contain any allegations showing that it had been unreasonably refused or that its production had been waived, or that any other legal excuse existed for not presenting it. Nevertheless, evidence was .introduced in behalf of the plaintiff, over the objection and exception of the defendants, tending to show that the engineer unreasonably refused to give the prescribed certificate, inasmuch as it was unreasonable to refuse to give it, if, as the plaintiff testified, he had in fact substantially completed the work under the contract. The appellants now ■contend that this evidence was inadmissible under the complaint, and cite the case of Weeks v. O'Brien (141 N. Y. 199) as authority for the proposition that if the plaintiff relied upon a matter excusing him from procuring the certificate, the facts should have been stated.” The learned judge at Special Term suggests that this point was not necessarily involved in the actual decision of .the Court of Appeals in the case cited, and refers to Bogardus v. New York Life Ins. Co. (101 N. Y. 328), as declaring a contrary doctrine.

It seems to us, however, that the cases can be distinguished. The Bogarchis case certainly does hold that in an action ex contractu the complaint must show an existing contract and the performance by the plaintiff of any conditions. precedent or an offer to perform or an adequate excuse for non-performance; and Chief Judge Ruger expressly declares that this may be done by a general allegation of performance. Applying the rule thus laid down to the case at bar, it was entirely competent for the plaintiff, under his allegation of substantial performance, to show, for example, that certain work which the contract called for had been omitted bjr the express direction of his employers, or that they had required him to substitute one kind of work for another, or that the parties had changed the plan of construction by mutual consent. All these matters would relate to the performance of the contract. When, however, an agreement contains a stipulation which requires' the production of the certificate of an engineer, architect, or other superintendent as a condition precedent to the right to demand payment, the contractor really m.akes his compensation dependent not only upon the substantial performance of the work, but upon a subsequent procurement of the certificate; and unless he does procure the certificate or give some adequate reason for not obtaining it he must go without his pay. When, therefore, a contractor in such a case alleges that he has substantially performed all the work called for by his contract, that allegation is not an averment of any fact whatever in respect to the certificate. It is merely a statement that the plaintiff has completed the labor contemplated by the contract; but it affirms nothing in respect to the evidence of such completion in the form of the certificate which he must submit (unless he can excuse himself for not submitting it) before he becomes entitled to payment.

While, therefore, we are of the opinion that the unreasonable refusal of the engineer" to give" the plaintiff his final certificate should have been alleged in the complaint, in accordance with the rule of pleading sanctioned in Weeks v. O’Brien (supra), we think that the complaint should have been amended on the trial so as to conform to the proof on this subject, and it may be so amended even now. (Harris v. Tumbridge, 83 N. Y. 92.) There is no express finding to the effect th».t the certificate was unreasonably withheld; but as the proof would amply sustain such a finding, it may be presumed here, in support of the judgment, that this fact was found by the trial court in favor of the plaintiff. (Meyer v. Lathrop, 73 N. Y. 315.)

The judgment should be affirmed.

All concurred.

Judgrnent affirmed, with costs.  