
    Michael Bernstein and Mitchell Bernstein, Appellants, v. The City of New York, Respondent. (Action No. 3.)
    Second Department,
    October 12, 1909.
    Contract — architect’s fees — construction of contract — dismissal of complaint.
    Where the complaint in an action to recover architect’s fees for preparing the plans for a building for the city of Hew York alleges full performance of the contract in so far as it was not prevented by the city, and the plaintiff on his opening introduced the contrafct which provided that preliminary plans and estimates should be presented, which, if not satisfactory, should be revised so that the cost, including architect’s fees and the costs of surveys and inspection, should be within §50,000, the complaint should not be dismissed for failing to state a cause of action on the theory that the contract required the preliminary estimate, including architect’s fees and the costs of surveys and inspection, to be within §50,000, and that this was not done. If such was not the proper construction of the contract the jury might have found, under the facts alleged, a sufficient performance by the plaintiffs.
    
      Appeal by the plaintiffs, Michael Bernstein and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5th day of February, 1909, upon the dismissal of the complaint by direction of the court upon a trial at the Kings County Trial Term.
    
      William L. Bowman, for the appellants.
    
      Theodore Connoly [Terence Farley and Francis K. Pendleton with him on the brief], for the respondent.
   Rich, J.:

Plaintiffs brought this action to recover architects’ fees for the preparation of plans and specifications for a storehouse building to be used in connection with the Kingston Avenue Hospital. The complaint alleges a contract in writing between the parties, and full compliance therewith and performance thereof by plaintiffs “ in so far as performance on their part was not waived or prevented by the defendant,” and that the plans and specifications made by them were delivered to and approved by the proper authorities and $500 paid them on account. At the commencement of the trial the plaintiffs introduced the contract in evidence, and counsel for the defendant thereupon moved to dismiss the complaint, upon the ground that it failed to state facts sufficient to constitute a cause of action.

Ths 5th paragraph of the complaint is as follows : That the estimated cost of the construction and erection of said building was Fifty thousand dollars ($50,000).” The 3d paragraph of the contract reads: “ The Architects shall on or before the 1st day of July, 1905, furnish to the City preliminary studies and specifications, together with an estimate of the cost of the said building or structure. If the said preliminary drawings, specifications and estimate are not satisfactory to, and approved by, the President,'then the Architects shall and will revise and correct the same so as to ponform to the suggestions, criticisms and requirements of the President, and so that the estimated cost, including Architects’ fees and the cost of surveys and inspection shall be well within the sum of Fifty Thousand Dollars ($50,000), the appropriation or funds available for the said building or structure.” I do not construe this paragraph of the contract as necessarily requiring the estimate accompanying the preliminary studies and specifications to be, including Architects’ fees and the cost of surveys and inspection, * * * well within the sum of Fifty Thousand Dollars.” The last provision quoted is not made applicable to the preliminary plans, but is in terms limited to the revised and corrected plans. The complaint alleges the approval of the preliminary plans, followed by the preparation and delivery of completed plans and specifications, and a payment of $500 on account thereof. The pleadings do not show that the plaintiffs were ever asked to revise or in any manner change the preliminary plans. They were not rejected because of an excessive estimated cost, or for any other reason, but the whole work was abandoned. If the preliminary plans were for a building, the estimated cost of which exceeded the appropriation, and were for that reason not available, it was the right of the president, under the provisions of the contract, to require such changes as would reduce such estimated cost and bring it within the limitation, and “then,” as the contract says, it was the duty of the plaintiffs, and they had the right before they could be deprived of the fruits of their labor, to revise and correct the preliminary plans “'so as to conform to the suggestions, criticisms and requirements of the President, and so that the estimated cost, including Architects’ fees and the cost of surveys and inspection shall be well within the sum of Fifty Thousand Dollars.” Attached to the contract are certificates of the president and deputy comptroller, showing an appropriation of $2,500 for architects’ fees and services, payable from the “Department of Health Building Fund,” which amount was then in said fund, unapplied, unexpended and available, and the amount so appropriated was equal to the contract value of plaintiffs’ services. The contract required the estimated cost to include architects’ fees and the cost of surveys and inspection, and plaintiffs were entitled to prove upon the trial, under their allegations of full performance and that the “ estimated cost of the construction and erection of said building was Fifty thousand dollars,” that the estimate included their fees, with the cost of surveys and inspection, and the complaint, therefore, states a .good cause of action. The complaint alleged facts from which the jury could have found a substantial performance of the contract by the plaintiffs. The question was one of fact for them to determine upon the evidence, and if resolved in favor of plaintiffs’ contention, they were entitled to recover the contract price for their services. (Horgan & Slattery v. City of New York, No. 1, 114 App. Div. 555, 559.)

The judgment must be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Jenks, Gaynor and Burr, JJ., concurred.

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