
    Francis J. Kelly and Others, Composing the Firm of F. J. Kelly & Sons, Respondents, v. St. Michael’s Roman Catholic Church in the City of Brooklyn and Charles E. McDonnell, Bishop of the Roman Catholic Church for the Diocese of Brooklyn, Appellants.
    Second Department,
    January 26, 1912.
    Contract — building contract—failure of owner to terminate contract for delay in completion — allegation of performance — provision requiring order for extra work to be signed by owner and architect — religious corporations — acts done by corporations must be authorized — waiver by the rector of provisions of contract — death of rector — admission in answer power of referee to permit amendments — costs, when not allowed.
    On the failure of a building contractor to complete the work within the prescribed time, an owner who does not assert his right to terminate the contract but permits the contractor to continue the work, is estopped from interposing the delay as a complete defense to an allegation of performance by the contractor. Under such circumstances the contractor may recover without an amendment to his complaint, even though it alleges full performance on his part.
    Under an allegation of full performance of a building contract evidence of waiver of performance of either covenants or conditions contained in the contract is inadmissible.
    A provision in a building contract that “ The Contractor shall make no claim for additional work unless the same be done in pursuance of the written order of the Architect countersigned by the Owner” is to be construed as referring to work which is concededly not called for by the contract and not to changes in the work intended tobe governed by the contract.
    Under such contract a written order for extra work given by the architect, who by the terms of the contract was-expressly made the agent of the owner for the purposes of the contract, is insufficient, unless it is countersigned by the .owner or by his duly authorized agent.
    An admission in an answer of a fact alleged in a complaint is evidence against the defendant of the existence of such fact on the trial although the answer was superseded by an amended answer which denied the fact formerly admitted.
    On a reference to hear and determine the referee has no power to grant an amendment to the complaint setting up a new cause of action.
    While it may be true that as to religious and other corporations not engaged in business an act which charges them with liability must be' shown to have been authorized before liability will attach, no particular form of evidence is required to establish the authorization, provided it is competent and sufficient.
    In an action brought againsta church corporation to recover upon abuilding contract alleged to have been entered into' between the plaintiff and the corporation evidence of a conversation between the plaintiff and the rector of the church tending to establish a waiver of provisions in the contract relative to the obtaining of written: orders for extra work is incompetent, unless a foundation is laid by proof that the rector was given general power and authority, not only in regard to making the original contract, but in regard to waiving any special provisions thereof. It seems, that the fact that the rector of the church is dead does not render the evidence of the conversation had with him incompetent under section 829 of the Code of Civil Procedure.
    Where an action upon contract brought against two defendants, only one of whom was a necessary party, results in a'judgment against the necessary defendant and the dismissal of the complaint as to the other, the latter is not entitled to costs, as of course, where both defendants appeared in the action by the same attorney and united in the same answer. The discretion exercised by the. trial court in refusing to grant the unnecessary defendant costs in such a case will not be disturbed where it does not appear that such defendant, personally was put to any trouble or expense in the defense of the action.
    Appeal by the defendant, St. Michael’s Roman Catholic Church in the City of Brooklyn, from SO' much of a judgment of the Supreme Court, in part in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 2d day of September, 1910, upon the report of a referee, as awards judgment against said defendant; and by the defendant, Charles E. McDonnell, bishop, etc., from so much of said judgment as dismisses the complaint as to him, without costs, with notice of an intention to bring up for review an interlocutory order denying the defendants? motion to require plaintiffs to make their complaint more definite and certain.
    
      Francis A. McCloskey [Joseph F. Keany, with him on the brief], for the appellants.
    
      Robert H. Roy, for the respondents.
   Burr, J.:

Plaintiffs bring this action against St. Michael’s Roman Catholic Church in the City of Brooklyn, sued as St. Michael’s Roman Catholic Church, and Charles E. McDonnell, bishop of the Roman Catholic church for the diocese of Brooklyn.

For a first cause of action they allege that on the 29th day of May, 1901, they entered into an agreement with the defendant St. Michael’s Church to perform work, labor and services; and furnish certain materials in connection with the construction of the church and rectory buildings. They allege full performance of such contract, and a balance remaining unpaid on account thereof amounting to the sum of $2,286.56.

For a second cause of action they allege that at the special instance and request of defendant St.. Michael’s Church, its agents and servants, they rendered'and performed certain work, labor and services and furnished certain materials in and about the said church and rectory buildings, and also on the schoolhouse of said St. Michael’s Church, in addition to that required under the said contract. ' An itemized statement of such extra work and materials is attached to the complaint. The value of such work and materials is stated to he the sum of $10,765.55.

The issues in this action were referred to a referee, who found as to the first cause of action that the work called for by the contract had been fully performed, and that the balance claimed to be due thereunder remained unpaid. As to the second cause of action, the referee found that during the progress of the work under the contract plaintiffs, at the instance and request .of the architect, Raymond F. Almirall, and the defendant St. Michael’s Roman Catholic Church, performed certain work and furnished certain materials in addition to that which was required by the contract, ■which were reasonably worth the sum of $8,537.22. The referee found that these were furnished upon the oral order and direction of' said architect, and the oral direction and request of defendant St. Michael’s Roman Catholic Church, and that no orders in writing were given fbr the same. The referee also found that no cause of action had been established against the defendant Charles E. McDonnell. Judgment was entered in accordance with the. report of the referee, and from such judgment each of the defendants appeal.

The evidence abundantly establishes the performance of the original contract, as well as the performance of work and the furnishing of materials not called for in. such contract, of the valúe found by the said referee. The validity óf such judg- ‘ ment is attacked, however, upon several grounds not involving the performance of the work or the value thereof. Some of these it is necessary to consider.

The defendants contend that the complaint is defective in that it neither contains' the substance of the alleged contract between the parties, with its conditions and qualifications, nor is there incorporated - therein or annexed thereto the contract itself. It may be that the complaint was open to attack upon the ground that it did not state facts sufficient to constitute a cause of action, provided such attack had been seasonably made. No demurrer was interposed, and no motion was made upon the trial of the action calling in question its sufficiency until after the contract between plaintiffs and the defendant church had been offered and received in evidence without objection. It was then within the discretion of the referee to permit an amendment to the complaint in accordance with the evidence already received, which would have made it immune from attack. If necessary the complaint might now be deemed amended in that regard, and the refusal of the referee to dismiss the complaint for failure to state facts sufficient to constitute a cause of action at the time that the motion was made does not. present reversible error. Defendants further contend that the contract which was received in evidence is neither upon its face nor in fact the contract of the defendant church. . In form it is one between Rev. Henry A. Gallagher, rector, party of the first part, and F. J. Kelly & Sons (the plaintiffs here), party of the second part. Nowhere in express terms does it purport to be the contract of the defendant church. But the contract is not under seal, and if it is the fact that the contract was made, as the complaint alleges, by the said rector, as the duly authorized agent of defendant St. Michael’s Church, .such defendant would be liable thereunder. The allegation in the complaint that this contract was the contract of the defendant church was admitted by the church in its original answer. During the progress of the trial before the referee, and after considerable testimony had been taken, and after the contract had been received in evidence without objection, plaintiffs asked to amend their complaint. The scope and purpose of this amendment will be subsequently considered. The application to amend having heen granted, the defendant church then amended its answer, and for the first time denied that the contract which was in evidence was its obligation, or that the person executing the same was its duly authorized agent for that purpose. While it may be true that as to religious and other corpora: tions not engaged in business, a business act which charges them with liability must be shown to have been authorized before liability will attach (Karsch v. Pottier & Stymus Mfg., etc., Co., 82 App. Div. 230; People’s Bank v. St. Anthony’s R. C. Church, 109 N. Y. 512), no particular form of evidence is required to establish this, provided it is competent and sufficient. It is difficult to think of a higher order of evidence than the written admission of such corporation contained in an answer duly verified. Unqualified and unexplained, it would be conclusive. In this action the defendant church in the first instance, with the solemnity required by an answer made under oath, admitted that the contract which is the basis of this action was its contract. Although in its amended answer it did deny that it had entered into any written contract or agreement “for the performance of the work, labor and services or the furnishing of the materials mentioned and described in the said amended complaint,” this form of denial might be open to criticism as a negative pregnant, and, therefore, bad. (Pom. Code PI. [3d ed.] §§ 618, 619.) But if it was sufficient to make the existence of the contract sued upon an issuable fact, its former admission was evidence against it and in favor of the plaintiffs. ■ (Davidson v. Village of White Plains, 197 N. Y. 266.) After the complaint had been amended, the original answer was offered and received in evidence as proof of this fact. To some extent, at least, this evidence was corroborated by the testimony of the defendant McDonnell, the bishop of the diocese, who was a member of the board of trustees of the defendant, and also of the advisory board of the diocesan consultants, to the effect that the plans when drawn were brought and presented to such advisory board, and that permission was given for the construction of the building according to the plans and specifications presented by the architect, and that they were then given to the rector, with permission to go ahead according to such plans and specifica-

tions. No testimony was offered on the part of defendants which tended in the slightest degree to Weaken or impair the effect of this evidence, and the referee was entirely justified in finding that the contract sued upon was the contract of the defendant church. ■ Defendants further contend that the granting of plaintiffs’ motion to amend on thei trial was beyond the power of the referee. If the amendment to the complaint set up a new cause of action, the referee Was without power to grant the same. (Collins v. St. Lawrence Club, 123 App. Div. 207; Mitchell v. Bunn, 2 T. & C.,486; Riley v. Corwin, 17 Hun, 597; Perry v. Levenson, 82 App; Div. 94,) Plaintiffs sought to. amend their complaint as to thb first cause of a'ction in this regard. It appeared that the work called for by. the written contract was not completed within the time specified therefor. The complaint alleged full performance of all the terms and conditions of said contract. By amendment plaintiffs sought to add the words “excepting that the said work was not completed on the day. fixed in the contract for the completion and the delay in the completion of the work was due to the fault of the defendants, their agents and servants.” The character of defendants’ fault Was then specified. So far as this amendment is concerned,- we think that it was unnecessary. If there is delay in the performance of a contract,, if the owner of the property to be improved does not insist upon his strict legal right to put an end thereto for! failure to complete within the prescribed time and permits the contractors to continue the work, he will be estopped from interposing as a complete defense to an allegation of performance the contractor’s delay. (Kenny v. Monahan, 53 App. Div. 421; affd., 169 N. Y. 591; Crocker-Wheeler Co. v. Varick Realty Co., 104 App. Div. 568; Gallagher v. Nichols, 60 N. Y. 438; Bunn v. Steubing, 120 id. 232.) It was not necessary, therefore, when the contract had not been terminated but defendants had; allowed plaintiffs to proceed to the completion thereof, to prove the reason why the work was not done within the time specified. If it was not necessary to prove it, it was not necessary to allege it. The amendment, therefore, was immaterial, and did not change the cause of action.

At the same time plaintiffs sought to amend the complaint so far as it referred to the extra work stated as a second cause of action, by inserting therein the words: “That the written orders for the doing of such work called for in the contract aforesaid were waived by the defendants.” It is well settled that under an allegation of full and complete performance, evidence of waiver of performance of either covenants or conditions is inadmissible. (Hoffman v. Met. Life Ins. Co., 135 App. Div. 739; Allen v. Dutchess County Mut. Ins. Co., 95 id. 86; Williams v. Fire Assn, of Philadelphia, 119 id. 573.) The power of the referee to grant this amendment is, to say the least, questionable. But it is not necessary for us to finally determine this, as we have reached the conclusion that this judgment must be reversed upon another ground, and before a new trial is had application may be made to the Special Term for such amendment of the pleadings as may be necessary, upon such terms as may be just.

With regard to extra work, the contract contained this provision: “ The Contractor shall make no claim for additional work unless the same be done in .pursuance of the written order from the Architect, countersigned by the Owner.” While this is to be construed as referring to work which is concededly not called for by the contract, and not to changes and alterations in the work intended to be governed thereby (Dwyer v. Mayor, etc., 77 App. Div. 224), plaintiffs allege and the referee has found that the work and materials for which recovery was had under the second cause of action were of the former character. This provision of a contract being for the benefit of the owner of the property to be improved, may be Waived, or by his conduct such owner may be estopped from contending that the plaintiff could not recover, notwithstanding the failure to procure such orders. But such waiver or such conduct creating an estoppel must be on the part of the defendant owner or his agent duly authorized. An architect, although he may be the general agent of the owner, is not his agent with regard to waiving the provisions of a contract requiring written orders for extra work. (Langley v. Rouss, 185 N. Y. 201.) Even Where, as in this case, the architect is expressly made the agent of the owner for the purposes of the contract, such agency, so far as it relates to directing that extra work should be done, is by the terms thereof limited to such orders and directions as he should give in writing, and even his written order would be insufficient unless countersigned by the owner or its duly authorized agent. (Langley v. Rouss, supra; Woodruff v. R. & P. R. R. Co., 108 N. Y. 39.) We have searched this record in vain for any evidence of acts on the part of the defendant church which would amount either to a waiver or estoppel. Against the objection and exception of defendants, plaintiffs were permitted to testify to conversations with the architect, to the effect that at the beginning of the work he stated that “it was a pretty big' job; he supposed there would be extras and changes, and for that reason he left in our office at the building a carbon copy pad to, {sic) whenever there were any changes or any extras, he was. to give us an order written on this pad, and one copy was . to go to his office and one to ours.” They were also allowed to testify that the first time they asked him to write an order the pad was taken out of their office, and the architect told them he would send a regular form of order from his office. There is no contention that any such written orders were' ever given. They were also permitted to testify against the objection and exception of defendants, that in conversation with Father Gallagher, the rector of the church, they told him that “we were doing extra work there and we hadn’t received orders, and he said he knew that there was extra work being done, and that he would see that we were paid.” They further testified that they meant “by not getting. orders for extra-work, that we didn’t get, in all cases, written orders from the architect. In a couple of little cases we got written orders; in other cases we got verbal orders.” This conversation. with the rector of the church was .objected to as generally incompetent, and particularly as being incompetent under section 829 of the Code of Civil Procedure. The latter objection we do not deem to be well founded. That -the evidence was incompetent unless a foundation was laid for it by proof that the rector of the church was given general power and authority, not only in regard to the making of the original contract, but in regard to waiving any special provisions thereof, seems to us clear. (Langley v. Rouss, supra; Woodruff v. R. & P. R. R. Co., supra; Fitzgerald v. Moran, 141 N. Y. 419; Dwyer v. Mayor, etc., supra.) In the Langley case the court say: ‘“Where the contract contains express provisions that no allowance shall be made against the company for extra work, unless directed in writing-under the-hand of the engineer, or some other person designated, or unless some other requisite formality be complied with, the party who performs extra work upon the assurance of any. agent of the company that it will be allowed by the company, without the requisite formality, must look to the agent for compensation and cannot recover of the company either at law or in equity. ’

As this was all of the evidence in the case with regard to the waiver of the provisions of the contract requiring the obtaining of written orders before making claims for extra work done or materials furnished, and as this evidence was clearly incompetent and insufficient, this judgment must be reversed. It may be that upon a new trial it will be quite easy to lay the necessary foundation to make the directions of the rector of the church competent upon this point.

Several further objections were made to the right of the plaintiffs to recover against the defendant church. We have examined each of them. None of them seems to possess merit.

The defendant McDonnell appeals from so much of the judgment in his favor as denies to him costs. This matter was in the discretion of the referee. He had appeared in the action by the same attorney as did the defendant church, and they had united in an answer. Under such circumstances a successful defendant is not entitled to costs as of course. (Code Civ. Proc. §§ 3228-3230.) There seems to have been no reason for naming him as a party defendant, but it does not appear that he was personally put to any trouble or expense in the defense of the action, and we think, Under the circumstances, that the referee’s discretion was wisely exercised.

The judgment appealed from should be reversed as to the defendant St. Michael’s Roman Catholic Church, and a new trial granted, costs to abide the event, and should be affirmed as to the defendant McDonnell, without costs.

Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred.

Judgment reversed as to the defendant .St. Michael’s Roman Catholic Church and new trial granted, costs to abide the event, and affirmed as to the defendant- McDonnell, without costs.  