
    BENJAMIN WEEKS, Appellant v. JAMES O’BRIEN, as Executor, etc., Respondent.
    
      Building contract—Architect's certificate, refusal of same—Breach of contract.
    
    This action was to recover the amount of the last payment upon a building contract, in which it was provided that this payment should be paid upon the architect’s certificate, which had been refused. It appeared that the cellar bottom had not been laid in accordance with the contract which required that it should be made water-tight. It had been laid, but about the time for the completion of the contract the water had come into the cellar and broken up the bottom, and it was in this state when the plaintiff left the work and the architect refused the certificate.
    
      Held, that a cel lar has an important relation to the building above it in respect to health, comfort, and the state of the building itself, and that the omission to comply with the contract in respect to its completion, etc., could not be called unintentional in the sense of those cases which have alio wetl the certificate to be dispensed with. The plaintiff failed to establish that the contract had been substantially performed and that the certificate had been unreasonably withheld and this failure called for the dismissal of the complaint.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 5, 1891.
    Appeal from a judgment entered upon an order dismissing the complaint at trial term.
    
      George W. McAdam, attorney, and Albert Mathews of counsel, for appellant.
    
      Edmund Huerstel, attorney, and Abram Kling of counsel, for respondent.
   Per Curiam.

The action was to recover the amount of the last payment upon a building contract provided to be paid upon the architect’s certificate. In the plaintiffs case it appeared that the contract had not been performed in several particulars. The most important of these was that the cellar bottom had not been laid in accordance with the contract which required that it should be made water-tight. Its situation was such that it was subject to the flowing of water. It had been once laid by a sub-contractor of the plaintiff, but about the time for the completion of the contract water had come in and broken up the bottom. It was in this state when the plaintiff left the work. The architect refused to give a certificate.

On the trial it was argued by the plaintiff that the architect’s refusal was unreasonable, as the work not done was a minor and comparatively unimportant part of the work done under the contract, and the contract had been substantially performed.

A cellar has an important relation to the building above it, in respect of health, comfort, and the state of the building itself. The omission to comply with the contract could not be called unintentional in the sense of those cases which have allowed the certificate to be dispensed with. Phillip v. Gallant, 62 N. Y. 256 ; Woodward v. Fuller, 80 Ib. 312. There was not an omission to notice it because the other details of the contract were numerous. Attention had been given to the cellar, and everything done or omitted had purpose and intention. The plaintiff failed to prove that the contract had been substantially performed, or that the certificate had been unreasonably withheld. This called for the dismissal of the complaint. The jury could not have used the testimony in a way that would have justified them in finding for the' plaintiff on these matters.

There was a second cause of action, and the counsel for appellant argues that it should have gone to the jury. There was no request that this should be presented to the jury, and the manner in which the action was treated led to the second cause of action not being noticed.

Judgment affirmed, with costs.

Ingraham, J. (Concurring).

By the contract sued on the certificate of the architect was a condition precedent to the right of the plaintiff to receive the payments to recover which this action is brought. The complaint does not allege that such a certificate was given, nor is it alleged that the architect unreasonably refused to give such a certificate.

It was conceded on the trial that no such certificate was given by the architect. The complaint was dismissed upon the express ground that it was not alleged either that the certificate was given or that the architect unreasonably refused to give the certificate. There was no application to amend the complaint.

The evidence of the plaintiff showed that the plaintiff had failed to complete his contract, and it was upon this ground that the architect refused to give the certificate.

The evidence did not justify a finding of the jury that the contract had been substantially complied with, or that the refusal of the architect to give a certificate was unreasonable. The only request for a certificate was the letter of September 8, 1882: to that the architect replied, stating the grounds of his refusal. They were that the contract was not completed and that sub-contractors had filed liens. These reasons fully justified the refusal and there was no evidence that the reasons given by the architect were not founded on fact. The evidence did show that the plaintiff had not completed his contract. That the cellar was not water-tight, and it would appear from the plan introduced in evidence that a foundation for the cellar floor of the thickness of two feet was required. This, plaintiff conceded, he had failed to furnish. It would thus appear that the plaintiff failed to either allege or prove the condition upon which his right to recover depended, viz.: that the certificate of the architect had been given or unreasonably refused.

The right to recover was not by the complaint based upon the fact that the defendant’s testatrix .had accepted the alternative provision of the contract and completed the work herself, but upon the right of the plaintiff to recover the amount due on the contract because of its substantial completion. The objection was taken that no such cause of action was alleged, and the court so held. If plaintiff had desired to present such a question an application should have been made to amend the complaint.

I agree, therefore, that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.  