
    John Langley, Appellant, v. William W. Rouss, as Executor, etc., of Charles Broadway Rouss, Deceased, Respondent.
    
      Building contract—when an architect, “ acting for the purposes of this contract as the agent of the said owner,” mag waive requirements thereof—proof that the architect acted in bad faith excuses a failure to produce his certificate—extra work caused by the specifications being impossible of execution oi' erroneous must be paid for.
    
    Where a building contract provides that the work shall be done “under the direction and to the satisfaction of .William J. Dilthey, architect, acting for the purposes of this contract as the agent of the said owner,” the architect has power to waive a clause of the contract providing that “no extra work will be allowed in any case unless itemized estimate is submitted by contractor and architect’s order in writing is given for the same.”
    Where the contract provides that “ all payments shall be made upon written certificates of the architect to the effect that such payments have become due,” evidence that the architect unreasonably or in bad faith refused to issue a certificate for work done is a sufficient excuse for the contractor’s failure to produce it.
    Where the specifications of the contract provide, “ The present northerly bearing wall to act as shoring supports while setting columns," and that “ the depths of independent foundations on north property are below new cellar floor,” if it is impossible to use the northerly bearing wall for the purpose contemplated, . and if the representation respecting the depth of the foundations on the north property is incorrect, the work occasioned thereby is extra work, for which the contractor is entitled to compensation in addition to the contract price.
    Goodrich, P. J., dissented.
    
      Appeal by the plaintiff, John Langley, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of' the clerk of the county of Queens on the 2oth day of June, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from ah order-entered in said clerk’s office on the llth day of July, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Nelson Zabriskie, for the appellant.
    
      William J. Townsend and John J. Rooney, for the respondent.
   Willard Bartlett, J.:

The plaintiff entered into a contract with Charles Broadway Eouss, whereby the plaintiff undertook to perform certain mason and carpenter work on a building to be erected for Mr. Eouss, and in the alteration and extensión of another building owned by him. This action is brought to recover $11,505.30-as the value of extra work, over and above that provided for in the contract, which extra work is alleged to have been performed at the request of Mr. Eouss. Upon the trial, at the close of the evidence on both sides, the complaint was dismissed, and from the judgment entered upon the dismissal, and an order denying his motion for a new trial on the minutes, the plaintiff has appealed.

The appeal can be disposed of most conveniently by considering the points made by the respondent in support of the dismissal.

The first is, that the plaintiff was not entitled to pay for extra work without proof of a written order from the architect for the same. The contract provides that “ no extra work will be allowed in any case unless itemized estimate is submitted by contractor and architect’s' order in writing is given for the same.” The answer to this objection is that as to the extra work thus done there was proof tending to show that the requirement.was waived by the architect, and by the provisions of the contract the architect was made the agent of the owner and had authority to waive such requirement in his behalf. Article 1 of the contract declares that the contractor shall provide all the materials and perform all the work mentioned in the specifications and shown on the drawings, under the direction and to the satisfaction of William J, Dilthéy, architect, acting for the purposes of this contract as the agent of the said owner,” Charles .Broadway Eouss. In Thomas v. Stewart (132 N. Y. 580) it .was field that an architect who was the agent of the owner and represented him in the erection of the building possessed authority to -consent to the substitution of materials inferior to those called for fiy the contract. This was equivalent to a waiver of the provisions of the contract prescribing the use of better materials. The authority in the present case to act for the purposes of this contract” as the agent of the owner, empowered the architect to •do anything which the owner himself could do in respect to the matters mentioned therein; and one of those matters was extra work. The plaintiff, therefore, was not prohibited from recovering for extra work by the requirement that he should obtain the architect’s order therefor, if he could show that the architect fiad waived the requirement; and lie offered sufficient proof of such a waiver to entitle him to have that question submitted to the jury.

What has already been said disposes of the respondent’s second point, that the architect, as agent of the owner, had no authority to waive the provision of the contract requiring a written order for •extra work.” The third point is that the plaintiff was not entitled to recover without the production of a certificate of the architect as to the amount due for extra work. This is based upon the provision in the contract that all payments shall be made upon written certificates of the architect to the effect that such payments have become due.” But if the extra work for which this suit is brought was done by the oral direction and with the sanction of the architect, empowered to represent the owner as his agent, and the architect refused to certify that the contractor was entitled to payment of the reasonable value thereof, such refusal would be without any justification and cannot be available to the owner as a defense. Where a provision for a certificate is contained in a contract like this, the ■contractor is excused from producing the certificate if he shows that it was refused unreasonably or in bad faith. (Bowery National Bank v. Mayor, 63 N. Y. 336.)

Finally, we ‘come to the proposition embraced in the fourth and ■fifth points of the brief for the respondent, that the work for which the plaintiff seeks to' recover was not extra work but was covered fiy the contract and specifications. Counsel on both sides treat the plaintiff’s claim as consisting of four items: (1) For sustaining and. shoring beams and flooring of old building while columns and. girders were being put in place, $6,600; (2) for shoring, sheath-piling, sustaining and underpinning adjoining north wall, $3,414.40 ;. (3) for roof work and bulkhead on old building, $1,215.90, and (4) for temporary galvanized smoképipe, $275. I think a fair construction of the contract and specifications leads to the conclusion that, very little, if any, of the work represented by these items was included, within the specific terms of the agreement between the parties.

In regard to the first item, the mason’s specifications show that it-was contemplated by the owner that the northerly wall of the old building should act as a shoring support while the columns were-, being set in the new building. In the progress of construction,, however, it became apparent that the wall was not available for such purpose; and because it could not thus be utilized, the extra-work included in this item of the plaintiff’s claim was rendered necessary. It could not have been within the contemplation of the-parties as essential at the time when the contract was made, because the language of the mason’s specifications on this point expressly declared that the north wall was to furnish the requisite support The present northerly bearing wall to act as shoring supports while= setting columns.”

The plaintiff’s claim to be allowed the second item for extra work, done in shoring and underpinning the adjoining north wall is based, upon the statement in the mason’te specifications that “ the depths of independent foundations on north property are below new cellar-floor.” There was a conflict of evidence as to what was the fact in. this respect. I think this issue should have been submitted to the* jury. The plaintiff was entitled to rely upon the representation, quoted as to the depth of the foundations on the north property,, and to regard any work as extra which was rendered necessary by reason of the fact, if the jury found it to be the fact, that the representation was incorrect.

The third item is denominated the bulkhead claim by counsel—a. bulkhead in this sense being a sort of superstructure or cupola”' on the old building. While some of the work included in this item-may perhaps be regarded as falling within the contract, I think the greater portion of it was outside. Lastly, the item for the tempos rary smokepipe seems clearly distinguishable from the flues mentioned in the specifications, and from the underground flue mentioned in the architect’s letter in regard to some extra work which he admits having ordered.

To recapitulate, my conclusions with reference to this appeal are as follows:

(1) The work for which the plaintiff seeks to recover in this suit was for the most part not covered by the specifications. This conclusion is subject to a possible exception in regard to some of the work included in the third item of his claim and'to the view which the jury may take as to the relative depth of the foundation of the adjoining building, the shallowness of which constitutes the basis of the second item of the plaintiff’s-claim;

(2) The contract bound the plaintiff to furnish estimates of extra work and obtain the written consent of the architect therefor;

(3) The architect’s agency for the owner was broad enough to authorize him to waive this requirement;

(4) The jury should have been allowed to pass upon the question whether he did waive it or not, together with the other issues of fact indicated in this opinion, as well as the value of the work.

- If these conclusions are correct, it follows that there must be a new trial, and I so advise.

Woodward, Hirsohberg and Hooker, JJ., concurred; Goodrich, P. J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  