
    John C. Fogg et al., App’lts, v. Suburban Rapid Transit Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    1. Contracts—Conditions precedent.
    A provision, in a building contract that the contractor shall show that all materials furnished by him are free from mechanic liens before the final payments shall be made, is a condition precedent.
    2. Same—Performance.
    Where a plaintiff fails to allege or excuse the performance of a condition precedent in a contract, the defendant may show a breach of suph condition without having pleaded.it.
    3. Same—Waiver.
    The defendant, in an action for money due under a contract, does not waive a condition precedent by pleading payment.
    Appeal from a judgment dismissing the complaint.
    
      L. J. Morrison, for app’lts; Brainard Tolies, for resp’t.
   Van Brunt, P. J.

This action was brought to recover for work, labor, and services, and materials furnished by the plaintiffs to the defendant. Three causes of action are set out,—one, for work, labor, and services, and material furnished under and pursuant to a written contract entered into between the plaintiffs and the defendant; the second and third for extra work.

The plaintiffs, as part of their case, introduced in evidence the contract between the parties, which prpvided for the performance of extra work, and also contained the following provision:

“ The party of the second part further agrees that he will present to the party of the first part satisfactory evidence that all just liens, claims, and demands of the employes of the said party of the second part, or of parties from whom materials used in the construction of the work may have been purchased or procured, are fully satisfied, aud that the materials and work done under this agreement are fully released from all such liens, claims, and demands before said party of the second part will demand or shall receive the sums due on final payment under this agreement.”

The plaintiffs also gave evidence of the performance of work and of the supply of materials. At the end of the plaintiffs’ case, the defendant moved to dismiss the complaint, upon the ground that the plaintiffs had not complied with the condition of the contract above quoted, and had never presented any evidence upon the subject mentioned therein. This motion was denied. The defendant thereupon proceeded to prove that mechanics’ liens existed against the work in question and the money to become due thereon, which evidence was objected to upon the part .of the plaintiffs, upon the ground that it had not been pleaded, and the plaintiffs had had no opportunity to meet it. After certain evidence of this kind had been given under the said objections, the defendant rested, and the court dismissed the complaint, but not upon the merits. From the judgment thereupon entered, this appeal is taken.

It is evident from the nature of the record that the court dismissed the complaint because of the existence of the mechanic’s lien of which evidence had been given. It is urged that this was error, because no such defense was set up in the answer, and the admission of the evidence in question was therefore erroneous. It may be true, if it had been necessary to set up any such defense in the answer, it would have been error to have admitted the evidence. But we think that the court would have been justified in dismissing the complaint, unless affirmative proof was offered upon the part of the plaintiffs of compliance with the condition of the contract above mentioned.

It is urged that this condition of the contract was not a condition precedent, and that the defendant, not having pleaded the breach thereof, was not in condition to prove it. But, by the express phraseology of the provision, it is manifest that it was a condition precedent, because it says that this evidence is to be furnished to the party of the first part (the defendant) before the parties of the second part (the plaintiffs) will demand or shall receive the sums due upon final payment under this agreement. It would be difficult to see how a condition precedent could be expressed in more apt or appropriate terms. Such provisions in respect to architects’ certificates have always been held to the conditions precedent: and, if we were in need of authority for the support of this proposition, we have it in the case of Weeks v. O'Brien, 141 N. Y. 199 ; 56 St. Rep. 813. In this case it is held that, where a building contract contains a condition requiring an architect’s certificate of completion of the contract before payment of the last installment, it is essential, in an action upon the contract to recover that installment, to allege in the complaint performance of that condition, or to set forth facts excusing the plaintiffs from performing the condition, and that, in order to avail himself of it, the defendant is not, required to present it by demurrer or answer, but may raise it on the trial.

It is claimed upon the part of the appellants that, if compliance with the provisions of the written contract in reference to proof that no liens existed was a condition precedent, compliance therewith was waived by the defendant, upon the ground that the position taken by the defendant was that the plaintiffs had been paid in full for the work done and materials furnished. It would be a novel proposition to hold that an answer of payment could possibly be said to waive the performance of a condition precedent, which condition it was not necessary for the defendant to set up by answer, or, if the want of an averment made the complaint defective, raise by demurrer. ,

It would seem, therefore, that the plaintiffs’ proof was fatally defective, and the judgment must be affirmed, with costs.

All concur.  