
    Peter Jacobson and Others, Doing Business as Jacobson, Motz & Breithack, Respondents, v. The Ebling Brewing Company, Appellant.
    Second Department,
    January 10, 1913.
    Contract — action to recover for extra work under building contract — agreement with architect — evidence — waiver — receipts.
    A building contract provided that there should be no extra claims, except for work performed under written orders of the architect. In an action to recover for extra work performed under written orders of the architect, the defendant’s agent claimed that no new work was to be undertaken except upon a written contract with the defendant, and that he ■ had given no authority to the architect to make such contract.
    
      Held, that the evidence is sufficient to justify an inference that the defendant’s agent authorized the'architect to determine upon the necessity of the alterations which were made, and that the defendant is liable.
    
      The plaintiff did not waive his right to recover by signing receipts given at the time of receiving final payments upon the original contract, where there was evidence and the jury found that such receipts were not to include payment for extra work.
    Appeal by the defendant, The Ebling Brewing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 18th day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of March, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Norbert Blank, for the appellant.
    
      J. D. O’Connor, for the respondents.
   Woodward, J.:

The plaintiffs bring this action to recover $213.50 for extra work performed under the terms of a written contract upon the order of the architect employed by the defendant. The contract provided for the performance of certain work and the furnishing of certain materials, according to the plans and specifications furnished by the architect, for the sum of $1,650, and it was provided that there should be no extra claims, except for work performed under written orders of the architect, and it is not disputed here that the plaintiffs did secure a written order from the architect, in accord with the provisions of the contract, but it is urged that this extra work was not necessary, and that the architect was without authority to make the written order, the original contract having been completed before the extra work was undertaken. It was the contention of the plaintiffs that this extra work was performed in good faith under the written order of the architect, and there is no dispute that the work was in fact performed. ’ The plaintiffs produced evidence to show that the defendant’s agent was approached in reference to the proposed changes, and that he refused to authorize them, declaring that it was up to the architect to determine such questions, and that thereupon " the architect gave the order in question. The defendant’s agent took the stand and denied that he had given any authority whatever to the architect, but insisted, on the contrary, that he had said that no new work should be undertaken except upon a written contract with the defendant. This was the principal issue submitted to the jury, in a charge to which no exception was taken, and the jury has found in favor of the plaintiffs, and we are of the opinion that the evidence is sufficient to justify the inference that the defendant’s agent authorized the architect to determine upon the necessity of the alterations which were made, and that the defendant is liable.

It was also urged that the plaintiffs had waived their right to recover by certain receipts which they gave at the time of receiving the final payments upon the original contract, but there was evidence that the plaintiffs refused to sign the papers proposed by the defendant if it was understood to include the payment for the extra work, and that they were assured that it only related to the contract, and while this was disputed, the jury has found with the plaintiffs, and the judgment ought not to be disturbed. The defendant acquiesced in the law of the case as presented by the court, and the jury having found the facts with the plaintiffs, it would seem that there ought to be an end of the controversy.

The judgment and order appealed from should be affirmed, with costs.

Present—Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Judgment and order unanimously affirmed, with costs  