
    Zebulon Wilson. Respondent, v. Guernsey Curran, Appellant.
    
      Contract — action to recover on contract for construction of road — defense of failure to perform or to obtafn architect’s certificate of completion.
    
    
      Wilson v. Curran, 190 App. Div. 581, affirmed.
    (Argued December 13, 1921;
    decided January 10, 1922.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 20, 1920, affirming a judgment in favor of plaintiff entered upon the report of a referee. The action was to recover an amount alleged to be due upon a contract for the construction of a road by plaintiff upon defendant’s premises. The answer denied the performance of the contract, alleged that the plaintiff had not obtained the architect’s certificate of completion, which was a condition to his recovery, and contained a counterclaim for the amount alleged to have been expended by defendant in completing the contract. The judgment dismissed the counterclaim upon the merits and awarded to plaintiff damages.
    
      Paul Armitage for appellant.
    
      I. L. Broadwin and Charles T. McCarthy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  