
    James Hartley, Appellant, v. Sophia E. Murtha and Others, Respondents.
    
      .Pleading — declaring upon a quantum meruit for work done and materials furnished under a special contract — when it is sufficient that the architects’ certificate be obtained after action begun — waiver of its production.
    
    'Where a party has performed a special contract for work and materials he is not bound to declare upon the contract, but may declare generally for materials furnished and work performed, and upon the trial the contract may be used to determine the rights of the parties.
    A provision in such a contract, making the procuring by the contractor of an architect’s certificate of the work done a condition of payment, may be waived.
    Under a contract providing that the contractor should furnish the materials and do the work “ to the satisfaction and under the direction of the said architects, to be testified to by a writing or certificate under the hand of the said architects,” and to be paid for in two installments, “ provided that in each of the said cases a certificate shall be obtained from and signed by the said architects,” two payments, one in cash and one by a note, were made to the contractor without requiring an architect’s certificate. At the time when an action was commenced to foreclose a mechanic’s lien for the work done under such contract, no certificate had been obtained from the architects, although it was ■secured before the trial, on which the defendant made no objection upon this ground.
    
      Held, that the complaint should not have been dismissed on the merits for the reason that the certificate was not obtained before the commencement of the action;
    That the facts that two payments were made without requiring certificates, and that no objection was made on the trial to the non-production of a certificate, justified a finding that this condition of the contract had been waived.
    
      Qúcere, whether under the terms of this contract it was necessary to obtain any certificate before the payment became due thereunder.
    Appeal by the plaintiff, James Hartley, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendants Murtka & O’Neill, entered in the office of the clerk of said court on the 30th day of December, 1895, upon the decision of the court, rendered after a trial at an Equity Term thereof dismissing the plaintiff’s complaint upon the merits.
    The action was brought for the foreclosure of a mechanic’s lien. The defendant Murtlia was the owner of the premises. On the Uth day of March, 1893, ghe leased them to P. J. O’Neill for fifteen years. On the same day O’Neill, through a third party, assigned the lease to liis wife Mai’y A. O’Neill. On the 10th clay of May, 1893, the husband, acting really as agent for his wife, but in his own name, made a contract with the plaintiff to furnish materials and make alterations upon the premises for the agreed price of $2,575. Under this contract and with the consent of the owner, the plaintiff furnished the materials and performed and completed the work contracted for. On the 29th day of July, 1893, P. J. O’Neill paid plaintiff on the contract $1,000 in cash. On the 11th day of August, 1893, O’Neill gave the plaintiff on.account of the'contract a note for $1,000, made by his wife and indorsed by him. The materials were all furnished and the work completed in September, 1893, except some few things done thereafter, but before the action was begun.
    The lien was filed September 5, 1893. The action was commenced March 14, 1894. The contract provided that the plaintiff should furnish the materials and do the work “to the satisfaction and under the direction of the said architects, to be testified by a writing or certificate under the band of the said architects * * * for the sum of * * * $2,575 * * * and the said party of the first part (O’Neill) * * * shall and will * * * pay * * * the sum of * * * $2,575 * * * payments to be made in manner following: First. When the store fronts are in and glazed, the stairs stepped up and the standing trim on, $1,275. Second, and last. When all the work is completed according to the plans aud the specifications, and the. satisfaction of the owner and architects, the balance of $1,300.
    “ Provided that in each of the said cases a certificate shall be obtained from and signed by the said architects.-”
    Under the date of January, 1894, the architects made a certificate that the plaintiff had fully completed the work according to the contract. This certificate was delivered to the plaintiff and Avas produced and put in evidence at the trial without objection. It was not, however, delivered to the plaintiff as a matter of fact until after the action was commenced. The court so found, and the evidence, though not clear, very likely justified that finding.
    The court determined in favor of the plaintiff all the facts essential to a recovery in the action, except the fact of having the architects’ certificate before the commencement of the action, and as to that question the decision was, “ at the time of the commencement of this action, the plaintiff was not in a position to begin the same, for the reason that the architects’ certificate called for by the contract had not been furnished to the defendant Philip J. O’hTeill, and for that reason the action must fail.” And in his opinion the learned trial judge said : “ The building contract, however, provided that payments shall be made upon the production of an architect’s certificate. H o such certificate was given until after this action was commenced. Therefore, at that time no demand could properly be made, * * * and no action for the foreclosure of the lien could properly be brought until the sum for which the lien was filed was due.”
    
      T. M. Tyng, for the appellant.
    
      Hamilton R. Squier and Michael Fennelly, for the respondents.
   Williams, J.:

The plaintiff did not set out the contract in his complaint, but proved it on the trial, and sought to recover pursuant to the terms thereof. He was not bound, as a matter of pleading, to declare upon the contract, but might declare generally for the materials furnished and work performed, and on the trial the contract might be used to determine the rights of the parties. (Hogan v. Laimbeer, 66 N. Y. 604.) It is not necessary to consider the question whether the $1,000 note was to be regarded as a payment on the contract or not, as the court held that the plaintiff had no right to recover or establish his lien for anything.

There may well be a question whether in fact the note was delivered as payment or simply as additional security.

That question can be considered and determined upon another trial, which we are inclined to order.

The only question to be determined now is whether the court ivas justified in dismissing the complaint upon the ground that the architects’ certificate had not actually come into the plaintiff’s custody before the action was commenced. Before the action was commenced the contract had concededly been complied with fully, so far as the furnishing of the materials and the performing of the work were concerned.

By the decision of the trial court the plaintiff was defeated wholly in his action because the architects’ certificate had not been delivered to the plaintiff before he commenced his action.

The contract did not provide, as the decision and the learned justice’s opinion seem to imply, that the certificate should be furnished, or produced to O’Neill before the payments became due. It merely provided that the work should be done to the satisfaction of the-architects, to be testified by the certificate, and the payments should be made when the work was completed to the satisfaction of the-architects and that the certificate should be obtained. The question,, therefore, is reduced to this: Could the plaintiff’s cause of action be defeated merely because the certificate was not procured by the plaintiff before the action was commenced. It bore date prior to-the commencement of the action. Its date was January, 1894. It-seems not to have been delivered to the plaintiff until after the commencement of the action. Whether, however, under the peculiar language of the contract the actual delivery of the certificate to the plaintiff before the commencement of the action was a-condition precedent to the right to demand payment of the money or-to maintain the action, the certificate having actually been made by the architects before the action was commenced, and having been produced by the plaintiff at the trial, we do not deem essential to-determine upon this appeal.

No question was raised upon the trial so far as the record discloses as to the failure to obtain or furnish the certificate. There was no motion to dismiss the complaint upon any such ground, and the plaintiff’s attention was not called to any such question. It may have been argued at the time of the submission of the case to the-court, but the record does not disclose the fact that it was.

The first suggestion of this question in the record was in and by the opinion and decision of the court. If such question had been raised at the trial it might have been obviated by proof of a-waiver of the alleged condition. Indeed the evidence as it is-would justify a finding that there was such a waiver. The contract required a certificate to be made as a condition of the payment of the first' as well as the last installment for the work and materials, and yet the $1,000 in cash was paid and the $1,000 note was given without requiring the certificate, and when this-action was begun O’Neill made no objection by reason of the non-production of the certificate. He did not ask that a certificate be obtained. He said nothing whatever about a certificate, but contented himself with complaining about the work itself.

These facts fairly construed would have justified a finding that there had been a waiver of the condition precedent of furnishing a certificate, even if such condition under the terms of this contract existed. It seems to us that upon the facts disclosed in this case the learned trial court erred in dismissing the complaint on the merits. The materials had all been furnished and the work had all been properly done before the action was commenced. The plaintiff was ■entitled to be paid the balance of the contract price, whatever it was, and to have his lien established therefor. The ground of the dismissal of the complaint was merely technical, and cannot be sustained upon the facts disclosed upon the trial and the conduct of the trial.

The judgment appealed from should be reversed and a new trial ■ordered, with costs of the appeal to the appellant to abide event.

Barrett, Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide •event.  