
    George Edward Harding, Respondent, v. Roman Catholic Church of St. Peter, Appellant.
    Second Department,
    June 28, 1906.
    Contract — action for labor and services as architect — direction of verdict for plaintiff.
    When an architect, suing to recover for work, labor-and services in building a church, has established a contract of employment made by the rector acting as agent for the corporation, which was ratified by the trustees, and has shown performance under the contract with extra work, etc., and the defendant shows no valid defense and fails to point out any question for the jury other than the whole issue,-it is not error for the court to direct a verdict for the plaintiff.
    Hooker, J., dissented.
    Appeal by the defendant, the Roman Catholic Church of St. Peter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 12th day of October, 1905, upon the verdict of a jury, rendered by direction of the court after a trial at the Richmond Trial Term, and also from an order entered in said clerk’s office on the 20th day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    Martin Conboy [Frank A. Clary with him on the brief], for the appellant.
    
      Hector M. Hitchings, for the respondent.
   Woodward, J.:

The complaint alleges that the plaintiff and one William Tyson Gooch, who has assigned his claim to the plaintiff, performed work labor and services as architects for the defendant, a domestic religi- ^ ous corporation, in forming and drawing plans and making estimates for and superintending the erection of its church and chapel at Hew Brighton, Staten Island, and that such work, labor and services were reasonably worth the sum of $7,876.39, of which $2,450 has been paid. The defendant demanded a bill of particulars, and this the plaintiff furnished,' showing a contract entered .into between the plaintiff’s firm and the defendant, the latter acting through ’ Father J. T. Early, whose acts were subsequently ratified by the board, of "trustees of the defendant, by which it was agreed that, the plaintiff’s firm should make a gift of $3,000 to the defendant’s fund for" the construction of the church, to be retained out of the fees which the "plaintiff’s firm should earn in drawing the, plans and specifications and superintending the construction of tile building, such .fees to be the usual fees of architects in that locality. Upon the' trial the plaintiff’ established his .cause of action as limited and defined by the bill of particulars, and at the close of the entire case the plaintiff moved for the direction of, a verdict. The court asked: “ What is there to go to the jury on? ” Defendant’s counsel replied: “T think we ought to go. to the jury onfall the issues in this case, your Honor.” The court thereupon directed a'verdict for the amount shown to be due the plaintiff, and the defendant excepted. After the court had granted a further motion for an' extra allowance the defendant’s counsel said : “ We ask for permission to go to the jury upon all the issues in the case raised by the pleadings,” and this being denied defendant excepted.

Defendant’s counsel appears to have been unable to point out, with.all the matters frhsh in his mind, any issue upon which there was a conflict of evidence,, and with all of the deliberation incident to the preparation of "an elaborate brief he has failed to call the attention of this court to such, an issue, and we are persuaded that .the learned- court at the Trial Term has .properly disposed of this case. There can .be no doubt that Father J. T. Early entered into a. contract with the plaintiff’s firm for the plans and specifications and for the superintendence of construction. It is equally clear that "the plaintiff’s firm furnished such plans and services,, and that the church was constructed. It is, undisputed that Father Early made .all ■ of the contracts under which the work was carried on, and that all of'such contracts were ratified by the board of trustees, and-there is no conflict .in the evidence as-to the amount expended in the construction of the church or in the customary rate of compensation based upon the cost of construction. There was some effort made to show that the plaintiff had stated'that the church ■ could be constructed under" his plans for $60,000 to $70,000, but the evidence shows that there were very material alterations made necessary, including the construction of a chapel, and the plaintiff testified, without contradiction, that the plans and specifications which lie presented could have'been carried out for the amount named, although it was not shown that these alleged representations were made to the board of trustees or to any one who relied upon them.

A careful-examination, of all the matters urged convinces us that the defendant has no valid defense to this claim of the plaintiff; that no issue was presented by the evidence upon the pleadings as they stood at the time of the trial, after the plaintiff had supplied his bill of particulars, and that the judgment should be affirmed.

Tbe judgment and order appealed from should be affirmed, witb costs.

Jenks, Gaynor and Rich, JJ., concurred ; Hooker, J., dissented.

Judgment and order affirmed, with costs.  