
    Clifford L. Miller, Respondent, v. Edgar Ketcham, Jr., Appellant.
    Appeal from a judgment in favor of the plaintiff rendered in the Municipal Court, borough of Manhattan.
    
      E. Ketchum, for appellant.
    Miller, Decker & Miller, for respondent,
   Per Curiam.

The contract between Reid and the defendant provided, among other things, that the work was to be done in a good and workmanlike manner to be approved by E. K. Bourne, architect. The complaint is based on a substantial performance of the work, mentioned in the contract, by Reid, and a failure to complete the portion of the work, not completed, which failure was caused by the act of the defendant. The defendant now contends that the plaintiff cannot recover because he has failed to secure the approval of the work by the architect. We axe of the opinion that this contention is not well founded. Plaintiff’s evidence excuses the failure to obtain the certificate of the architect. Weeks v. Little, 89 N. Y. 566; Elting v. Dayton, 17 N. Y. Supp. 849; Same v. Same, 67 Hun, 425; Weeks v. O’Brien, 141 N. Y. 199.

The complaint also contains the allegation that on March 2, 1899, the sum of $200 was due and owing to said Reid by the defendant. This allegation is denied by the defendant. The witness Reid testified that the defendant had paid him but $425. This evidence was not denied by the defendant. The trial justice in effect found, and his finding was warranted by the evidence, that Reid’s failure to complete was caused by the defendant. H defendant caused the failure, of course he is not entitled to damages because of the failure.

Present: Truax, P. J.; Scott and Dugro, JJ.

Judgment affirmed, with costs.  