
    CHARLES GUIDET, Plaintiff, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Defendant.
    A contract or agreement between the assignor of the plaintiff and the defendant, by The Groton Aqueduct Bowrd, for paving a portion of Third Avenue, authorized the said board to appoint such person or persons as they shall deem necessary to inspect the materials fimmished and the work done under the agreement.
    
    The contract also provides that the contractor shall not be entitled to receive payment for any portion of the work until the same shall be fully completed according to the agreement, and such completion duly certified by the inspectors employed on the work, and by the water surveyor;
    
    
      Held, That unless the plaintiff produced on the trial the certificate of the inspectors and the water purveyor provided for in the contract, or satisfactorily accounted for or excused their production, he could not recover.
    It was the duty of the Croton Aqueduct Board to keep inspectors on the work, and when the work was fully completed according to the contract, to cause said inspectors, on the application of the plaintiff, to furnish Mm such certificates, and if there was any unreasonable or obstinate refusal on the part of said.board to perform tMs portion of the contract, such refusal would constitute an excuse for the non-production of the inspector's certificate.
    
    When the strict performance of a condition precedent is unreasonably prevented by the other party, its ijerformance should be excused (see cases ■ cited in the opinion of the court).
    Tn the case at bar, the opinion of the court indicates that the absence of the certificate of the inspectors might be excused under the proofs, but the non-production of the certificate of the water purveyor was not accounted for nor excused, and was a fatal objection to the plaintiff’s right of recovery.
    
      Before Barbour, Ch. J., and Curtis and Van Vorst, JJ.
    
      Decided December 31, 1873.
    The water purveyor did not hold his appointment under the Croton Board, but was an independent officer appointed by the Board of Alderman (Laws of 1849, p. 539, § 7).
    He was the chief officer of a distinct bureau, and charged with specific duties, and among others, with the superintendence of paving, repaving, and repairing streets (Hoffman's Laws of N. Y. vol. 1, p. 378).
    The office' of water purveyor was not abolished by the provisions of the act reorganizing the local government of the city of New York passed April 5th, 1870, hut its continuance recognized by that act.
    The right of the plaintiff to demand and receive payment for the work performed under the contract depends upon the production of the certificate from the water purveyor, and the stipulation in the contract in respect thereto is binding and obligatory upon the plaintiff.
    The certificate of the Commissioner of Public Works provided for in the Laws of New York, 1871, vol. 3, p. 1335, and that of the commissioners under chapter 580 of the Laws of 1873, vol. 3, p. 1413, to the effect that they are satisfied that no fraud has been perpetrated in relation to said contract, or in the performance thereof, will not render the production of the certificate of the water purveyor unnecessary.
    This action came on for trial before Judge Sedgwick at a trial term of the court in June, 1873. At the close of the trial, defendant’s counsel moved to dismiss the complaint, on the ground of the failure of the plaintiff to put in proof required "by the contract, to wit, the certificate of the inspectors appointed by the Croton Board and by the water purveyor.
    After hearing argument, the court said :
    The question arises under an agreement made'by the plaintiff in this case, one clause in which says that he “ shall not be entitled to demand or receive payment for any portion of the aforesaid work or material until the same shall be fully completed in the manner set forth in the agreement, and each and every one of the stipulations hereinbefore mentioned are complied with, and such completion duly certified by the inspectors employed on the work and by the water purveyor.” There is an absolute agreement on the part of the plaintiff, into which he had the option to enter or refuse to enter. A strict application of the rules of law would require that the ordinary rules applying to contracts be applied to that, and that there are no contingencies under the contract under which he could recover when a breach of it was shown. But passing that by (and perhaps substantially it would be right to do so, and to consider that in connection with the other articles of the agreement as merely one of the conditions upon the occurrence of which he should be entitled to payment), it seems to me that the law is clear that he must comply with the condition or else account for not having "complied with it. Now, taking the cáse of Smith v. Sherry, the point of that case is, that after the contractor shall have proved the performance of the work, it is sufficient to entitle him to payment if he shows that he endeavored to obtain from the person named in the contract as the one to give the certificate a certificate, and that he “absolutely” (as one phrase has it), or another “unreasonably and in bad faith” refused to give it. Has there been in this case an equivalent of that proof in every respect ? In my judgment there has not. Mr. Gruidet, wrongfully or rightfully (I do not pass upon that), sees a public officer in charge of the work, a man named McConkey, directing two inspectors to lay a double line of guide-stone. He does not give any evidence here which satisfies me one way or the other who was substantially in the right or in the wrong. Mr. Gruidet may be in the right, or Mr. McGonkey. Thereupon, instead of attempting to perform the contract in good faith, under the terms and stipulations of the contract, under all the checks imposed by the contract (and the checks imposed by the contract are by no means the least important part of it), he chooses, in a phrase that to ray mind describes the matter, to “abandon” the contract under the Croton Aqueduct Department, and under an arrangement with the mayor and comptroller to go on with it as soon as they sent inspectors appointed by them and not by the Croton Aqueduct Department. During the continuance of that contract, so far as the evidence shows, he never applies to' the Croton Aqueduct Department to have inspectors put on the work. In going on with the work under the mayor and comptroller, it appears to me, he dispensed with the Croton Aqueduct Department proceeding further to appoint Inspectors. What could they do ? Mr. Guidet, in the performance of the work, did not hold himself responsible to. them. He had stopped work; he had gone there and received the directions of the mayor; and as soon as inspectors were appointed by the mayor and comptroller, he proceeded with the work under their directions. How, in substance, it was a condition of things that had never been provided for by this contract,, and therefore, in my judgment, the plaintiff has not satisfied the terms of his obligation to procure the certificate of the inspectors employed on the work.
    Then, as to the water purveyor, I fail to see any evidence why his certificate was not procured, or that it was unreasonably denied. There is an absence of evidence on both these branches, and therefore, in my judgment, the complaint in this case should be dismissed.
    Exceptions ordered to be heard in the first instance at the general term.
    
      Edmonds & Field, for plaintiff.
    
      E. Delafield, Smith, counsel to corporation, for defendant.
   By the Court.—Vah Vorst, J.

When the plaintiff rested his case, the defendant moved to dismiss the complaint on the ground of the failure of the plaintiff to put in proof the certificate of the inspectors appointed Tby the Croton Board and by the water purveyor required by the contract.

The motion was granted, the complaint dismissed, and the plaintiff excepted.

The contract entered into between the defendants, by the Croton Aqueduct Board, party of the first part, and James Saxton, party of the second part, under which the work and materials are claimed in the complaint to have been done and furnished by the plaintiff, provided among other things that the Croton Board should “appoint’’'' such person or persons as they might deem necessary to" properly inspect the materials to be furnished and the work to be done, and to see that the same corresponded with the specification set' forth in the contract. Such inspectors were to supervise each subdivision of the work, “whether such subdivision be the cutting of the blocks, or the excavation for and preparation of the foundation, or the laying of the pavement, or otherwise.’ ’

It was also provided in the contract “ that the party of the second part should not be entitled to demand or receive payment for any portion of the aforesaid work or materials until the same shall be completed in the manner set forth in the agreement, and each and every one of the stipulations therein mentioned were complied with, and such completion duly certified by the inspectors employed on the work, and by the water purveyor, whereupon the party of the first part should pay, etc.”

In Smith v. Brady (17 N. Y. 173), the provisions of the contract were that the balance of the moneys was to be paid thereunder “when all the work should be completed, and certified by the architect to that effect.”

In that case the work was held to be substantially completed in fact; yet as the parties had agreed to make the production of such certificate a condition precedent to the payment, the plaintiff was-held hound by that provision in the contract as any other.

Unless, therefore, the plaintiff produced on the trial the certificates of the inspectors and water purveyor provided for in the. contract, or has satisfactorily accounted for or excused their production, the ruling of the learned judge was correct, and the' complaint properly dismissed.

The right was reserved to the Croton Board under the contract “ to appointand it was their duty to keep inspectors on the work, and upon application by the plaintiff when the work was fully completed, according to the contract and specifications,to cause the inspectors to furnish such certificates, and if there was any unreasonable or obstinate refusal to furnish same, the plaintiff having faithfully performed his contract, such refusal would constitute an excuse for the non-production of the inspectors’ certificate.

When the strict performance of a condition precedent is unreasonably prevented by the other party, its performance should be excused (People v. Bartlett, 3 Hill, 570 ; Niblo v. Binsse, 44 Barb. 54; Moses v. Bierling, 31 N. Y. 462; Glacius v. Black, 50 N. Y. 148 ; Cohen v. Mutual Life Insurance Co., 50 N. Y 621).

There was no evidence of any distinct "appointment of inspectors for the work by the Croton Board. The result of an examination of their records fails to show any designation of persons for this service.

The legitimate manner in which bodies, such as the Croton Aqueduct Board should act in the public interest in a matter of this character, would properly be evidenced by some formal records, which would leave no room for doubt or controversy as to the persons appointed and authorized to perform the service of inspection.

But the evidence shows that after the plaintiff had collected on the ground the stone and material for the whole work, and had prepared the road bed for the pavement, and on the morning, and as soon as he began to lay the stone blocks, one McCoskey, ‘ in the employment of the Croton Board,” gave directions to two young' men, whose names are not given, who were there as inspectors, to pave with two rows of guide stones.

How these men were appointed does not appear.; but they acted under McCoskey. - ■

This direction was unsatisfactory to the plaintiff, who removed the- second, and commenced to pave with one tow of guide stones.

McCoskey then gave directions to the inspectors to stop inspecting the work, and they stopped.

The work was suspended for a few days, when by the direction of the mayor, or “ other city authorities,” other inspectors were sent to the work, which was resumed by the plaintiff, and was completed in ¡November, 1869, and within the time prescribed in the contract.

The new inspectors, with a city surveyor, Bozle, remained on the work until its close. The inspectors furnished to the plaintiff certificates of inspection, which were by him filed with the comptroller, with the certificate of Bozle, the surveyor, and the plaintiff received from the financial officer of the city in ¡December, 1869, the sum of one hundred and four thousand dollars, being seventy per cent, of the contract price for the work .and materials, leaving still due thereon a balance of forty-six thousand three hundred and eighty-seven dollars, for which this action is brought.

It.may well be questioned whether McCoskey was justified in removing the two inspectors under the cir-cumstances detailed in the evidence, and whether he was right in insisting that the contractor should pave with two rows of guide stones. There is nothing in the ■contract or specifications which requires such method of, doing the work, nor is there anything in the case from which it appears that it was necessary for the completion of the work according to the contract, that two rows of guide stones should be used.

There is a clause in the contract which provides " that if, at any time, the said board shall be of opinion, and shall so certify in writing, that the said work or any part thereof is unnecessarily delayed, or that the said contractor is wilfully violating any of the conditions or covenants of this contract, or is executing the same in bad faith, they shall have the power to notify the aforesaid contractor to discontinue all work under the contract, or any part thereof, and thereupon the said contractor shall cease to. continue said.work,” etc.

But the evidence fails to show that the board did at any time " certify ” in writing that they were of opinion that the contractor was wilfully violating any of the conditions or covenants of the contract, or that he was-executing the same in bad faith.

The adoption of a preamble and resolution on the subject, and the service of a paper, purporting to be a. copy thereof, on the plaintiff, signed by their secretary, is not such a certifying of an opinion by the board as is required by the contract, so as to justify a discontinuance of the work by the contract.

The requirement of the contract in this regard could be best answered by a writing' expressing the opinion of the board signed by its members. Justice to the contractors and their own responsibilities in the premises would seem to demand that.

The evidence shows that the work was well done, and according to the contract and specifications.

And if the only difficulty in the case was the non-production of certificates of inspectors shown to be ap-. pointed by the Croton Board, it might well be held that the certificates of “the inspectors employed on the work” would be sufficient under all the circumstances of this case, and would dispense with the production of others. For, as has already been observed, it was the duty of the Croton Board “to appoint” and keep inspectors on the work, which was not done.

But the non-production of a certificate from the •‘water purveyor” is not accounted for or excused, and would appear to be a fatal objection to the plaintiff’ s right of recovery. The “ water purveyor ” did not hold his appointment under the Croton Board. He was an independent officer, appointed by the Board of Aldermen, Act of April 11, 1849 (Laws of N. Y., 1849, p. 539, § 7). He was the chief officer of a distinct "bureau. This officer was charged with specific duties, amongst others with the superintendence of paving, repaving, and repairing streets (Hoffman's Laws of N. Y, vol. 1, 278). Ñor was the office abolished by the provisions of the act reorganizing the local government of the city of Hew York, passed April 5, 1870, when the Department of Public Works was created, into which the Croton Board was merged. The continuance of such "bureau and distinct chief officer is recognized by that act (Laws of N. Y.0, 1870, vol. 1, pp. 384, 385, § 77, 79).

■ It is true that the plaintiff on the trial stated that he thought there was no such officer at the time,—that he had not seen him on the work.

But the legal presumption is that the office was filled, and the witness Dork swears distinctly that Hanforth Horton was “water purveyor” in the year 1869.

The right of the plaintiff to demand and receive payment depends as much upon the production of a certificate from the “water purveyor” to the completion of the work in the manner set forth in the contract as from the inspectors. It is an additional guard which the defendants had a right to interpose for the faithful performance of the contract, and the stipulations in respect thereof are obligatory upon the plaintiffs.

Heither the certificate of the Commissioner of Public Works provided for in the Laws of N. Y., 1871, (vol. 2,1235, latter part of § 5), nor the certificate of the commissioners under chap. 580 of the Laws of N. Y., 1872 (vol. 2, p. 1412), certifying that “they are satisfied that no fraud has been perpetrated in relation to said contract or in the performance thereof,” dispenses with the-production of such certificate from the “ water purveyor.”

The judgment appealed from should be affirmed, with costs.

Curtis, J., concurred.

Barbour, C. J. (dissenting).

It was the duty of the contractor to procure such a certificate from the inspectors and water purveyor as the contract provides for, and the production of that certificate by him was a condition precedent, without which he could not claim payment. But a certificate signed by the purveyor only would not, have been a performance of the condition. It must have had the signatures of all. If, then, the acts of the city officials or their neglect to appoint inspectors, prevented the obtaining of the certificate of such officers, such act or omission on the part of the city rendered it impossible for the contractor to perform his condition precedent. And as that was caused by the act or fault of the party for whose benefit the provision was inserted in the contract, the contractor was thereby excused from the performance of such impossibility.

There is no doubt the work was done according to the contract. The defence has no merits, but is strictly technical, the defendant claiming that the contractor has not performed the condition which entitles him to payment by producing the certificate of the proper inspectors and purveyor.

The answer is perfect. “I c.ould not perform the condition, because the city refused or neglected to appoint or have the inspectors contemplated by the contract.”

The judgment should be reversed.  