
    John H. Byron, Resp’t, v. Edward T. Bell et al., Adm’rs, App’lts.
    
      (New York Common Pleas, General Term
    
    
      Filed June 2, 1890.)
    
    1. Contract — Evidence.
    A provision in a contract that the work should be executed and performed under the direction of the chief engineer, or his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed should be determined, does not preclude the testimony of other experts in a suit to enforce the contractor’s rights where he claims to have been fraudulently or unjustly dealt with.
    :9. Same.
    The contract did not specify a gross amount for the work, but merely rates for different kinds of work. One W., who was chief engineer of a construction company and the arbiter appointed by the contract to settle disputes, was asked as to what deductions should be made from plaintiff’s account; what proportion of work that plaintiff estimated at $1.50 a yard should be at $1.00 and as to the amount of rock taken out outside of the slopes as provided for in the contract. These questions were excluded. Held, error: that he was a competent expert on all these matters and such testimony would have been very relevant to the defense.
    Appeal by the defendants from a judgment rendered at a trial "term of this court upon the verdict of a jury, in favor of the plaintiff and against the defendants, for the sum of $8,458.72 damages and costs, and from an order denying a motion for a new ■trial.
    This is an action brought by the plaintiff to recover under a ■ contract made between the plaintiff and one Henry R Low, now deceased, for doing certain work in aid of the construction of the New York & Susquehanna & Western railroad.
    In 1881 the defendant had a contract with the New York & •Scranton Construction Company to build for it about forty miles -of railroad, lying in New Jersey and Pennsylvania, being part of the New York, Susquehanna & Western line of road, at $18,000 :a mile.
    May 23, 1881, the defendant sublet to the plaintiff about four miles of this work at specified prices for rock and earth excavations, etc.
    In the said written contract between the parties it was provided, •among other things, as follows: “ It is hereby mutually agreed that the chief engineer of the New York & Scranton Construction Company shall be, and he is hereby appointed, a common arbiter, to whom all and every question of difference between the parties, growing out of this contract, shall be referred, and whose decision .shall be final and binding upon both parties.”
    D. H. Wood was the chief engineer of the construction company.
    It was also provided that: “All measurements and calculations ■of the quantities and amounts of the several kinds of work per.formed shall be estimated by said engineer, whose determination, .shall be conclusive and binding on both parties.”
    
      No certificate of the engineer was procured. There have been two trials of this action. On the last one plaintiff testified that' he had asked the engineer for a certificate as often as once a week for two months.
    "IE J. Groo, for app’lts; L. Laflin Kellogg, for resp’t.
   Larremore, Ch. J.

This case has been once tried and appealed to the court of appeals. The.report of it in that court, Byron v. Low, 109 N. Y., 291; 14 N. Y. State Rep., 823, contains-a statement of the facts. The appellants claim that on this new trial the objection which led to the reversal before has not been obviated. But I am of opinion that the testimony of plaintiff at. folios 168 to 172 inclusive makes out a prima facie case of a demand for the certificate from the chief engineer, as required by the contract. Plaintiff’s direct testimony on the former trial on this point is not given, but we scarcely think appellants’ contention that it was substantially the same as on the present trial can be correct. His former cross-examination, which was read on this trial, may all stand consistently enough with the direct evidence of a demand for the certificate itself which is now given. There is other evidence from which the jury might have and did. conclude that the certificate had been unreasonably refused. The-case would, therefore, be analogous to the unwarrantable withholding by an architect, from a contractor, of a certificate of the completion of his contract. The contractor must, as a condition precedent to recovery at law, either produce the architect’s certificate, or satisfactorily account for its absence. Similarly, in the-case at bar, facts were shown from which the jury might infer that the engineer’s certificate was kept back without just cause for an unreasonable length of time. Even under the decision of the c'ourt of last resort, therefore, we think the jury were authorized to find that the condition precedent had been complied with, and that plaintiff was not bound to wait longer before proceeding to enforce his rights, especially in view of the fact .that defendant was about to depart from the country.

Many of the exceptions to rulings upon the trial we do not deem of any serious consequence. The contract provided that the work should be executed and performed under the direction of the chief engineer, or his assistants, by whose measurements- and calculations the quantities and amounts of the several kinds of work performed should be determined. But certainly that could not preclude the testimony of other experts in a suit to enforce plaintiff’s rights. We do not think -the contract obliged plaintiff to submit to the chief engineer’s decision and allowance without the right of appeal to the court, if the former claimed that, he was fraudulently or unjustly dealt with. And if under any circumstances he was entitled to sue, it goes without saying he had the right to call witnesses such as the assistant engineers Trues-dell and Coons, to prove the nature, extent and value of the work. This exception was not well taken.

Considerable evidence was excepted to because it was alleged to relate to transactions with the original defendant, now deceased, but none of such exceptions seemed valid. Many of the answers complained of do not as a matter fact relate either to “ conversations ” or “ transactions ” with the deceased, and such of them as may seem impliedly to do so come within the exception to the rule, made a part of the rule itself by § 829 of the Code. The testimony .of the deceased defendant on the former trial was read on behalf of the defense here, and plaintiff, therefore, became entitled to give his version orally of the matters therein referred to.

The rulings as to the testimony of the said deceased,, excluding a considerable portion of it, seem from the printed record rather strict, but they were within the discretion of the trial judge. In the ruling especially complained of, at folios 520, 521, 522, much of the long answer was clearly irresponsive, as the court held, and, moreover, it contained conclusions and calculations.

Nevertheless, we are constrained to hold that the exclusion of certain questions put to the witness, Daniel H. Wood, constituted error, which will require a reversal. The plaintiff had testified as to the amount and value of the work alleged to have been done by him under the contract, from a statement he had made, and the same was offered and received in evidence without objection as to that method of proof. (Exhibit J.) When Mr. Wood went on the stand, this paper was shown to him, and he was asked to state what deductions should be made from the amount. This question was objected to, and excluded. The following question was also put, with a similar ruling:

“Q. What proportion of the 865 51-100 yards of rip-rap wall that Byron has estimated at a dollar and a half a yard, what proportion of it should be at a dollar a yard ?

This question was put to Mr. Wood later on, and excluded:

“ Q. From what you saw there on the ground at Indian Ladder Bluff, what amount of rock in your opinion was taken out, outside of the slopes, as provided for in the contract and specifications ?”

The contract provided that the plaintiff should be paid “ for rock cut at Indian Ladder Bluff, one dollar and twenty-five cents per cubic yard,” and a portion of the judgment rendered depends upon the jury’s estimate of how much of such rock was actually cut. It must be remembered that the contract did not specify a gross sum for plaintiff’s compensation, but merely rates for different kinds of work; and, therefore, both from the very nature of the agreement, and because directly raised by the answer, the amounts and kinds of work actually performed were at issue. This witness, Mr. Wood, was not only the chief engineer of the New York & Scranton Construction Company, but by the contract itself he was “ appointed a common arbiter, to whom all and every question of difference between the parties, growing out of this contract, shall be referred, and whose decision shall be final and binding upon both parties.” Certainly, he was a competent expert upon all these matters upon which his testimony was excluded, and such testimony would have been very relevant for the defense. It was a serious error not to allow him to testify as to the facts, as it would have been if the court under defendant’s •objections had rejected the evidence of the assistant engineers, Truesdell and Coons. Defendants were in effect deprived of the ■evidence of their principal witness on a most important branch of the controversy. I cannot discover that this error was in any manner cured, and there is no alternative but to order a new trial.

Judgment reversed, new trial ordered, with costs to abide the event

Bookstaver, J., concurs.  