
    Erasmus D. Garnsey, App’lt, v. Joseph E. Rhodes, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Contract—Evidence.
    In an action upon a building- contract, evidence of conversations between the owner of the building and the architect, who in no manner represented the plaintiff, in relation to defects during the progress of the work: and in plaintiff's absence is inadmissible.
    2. Same—Construction—Extra work.
    The contract provided that the owner at any time should be at liberty to-require any alteration, addition or omission from the contract, and the same should not affect the contract, but would be added to or deducted, from the amount of the contract, as the case might be, by a fair and reasonable valuation. Held, that this did not bring a claim for extra work under the contract itself, and that unless the work on the contract was done ini such a negligent manner as to render the extra work valueless, the builder could recover the full value of the extra work although he may not have-completed his contract in accordance with its requirements.
    Appeal from judgment entered on report of referee.
    A! S. Church, for app’lt; J. A. Burr, for resp’t.
   Van Brunt, P. J.

This action was brought to recover a balance alleged to be due upon a contract for the erection óf a house-by the plaintiff for the defendant, and also for an amount alleged:, to be due for extra work.

It will not be necessary in the disposition of this case to consider the evidence in detail, because in consequence of errors in the admission of evidence it is necessary that- there should be a. new trial of the issues involved, and the court should not express, its opinion in the disposition of this appeal noon the question as to the weight of evidence so as to fetter or influence the new tribunal in considering the evidence which may be brought before it upon the new trial.

It seems to be clear that the introduction of the evidence of -conversations between the defendant and his architects, who were his agents-in respect to this transaction and in no manner represented the plaintiff, in-the absence of the plaintiff, after this contract had been entered into and during the progress of the work, were entirely inadmissible.

• These conversations were in respect to defects which the defendant is alleged to have found in the work which was being done, and agreements upon the part of the architects that the complaints were well founded and that the defect's should be remedied, and also a statement by the architects as to conversations which they had had with the plaintiff, and - the position which he is alleged to have taken in respect to some of the complaints.

■ Evidence of this character was clearly incompetent, as the plaintiff was in no respect responsible for the declarations of the architects, nor was he in any way responsible for any information which may have been conveyed to the architects by the defendant. This testimony was material. What influence it may have exerted upon the mind of the referee it is impossible for us to tell. It may have had influence in determining the referee in the conelusion at which he had arrived in respect to the merits of the controversy.

It may also be proper to consider the question of the claim for -extra work made by the plaintiff.

It is urged on behalf of the defendant that if there could be no recovery upon the main contract because of important deviations from that contract made intentionally by the plaintiff, there could be no recovery for extra work, because by the terms of the -contract extra work came within its provisions.

The clause of the contract relating to extra work is as follows r That should the owner at any time during the progress of the building request any alteration, deviation, addition or omission from the contract, he shall be at liberty to do so, and the same ¡shall in no wise affect or make void the contract, but will be .added to or deducted from the amount of the contract, as the -case may be, by a fair and reasonable valuation.

It seems to us'that the true interpretation of this clause does not by any means bring the claim for extra work under the contract itself. By the language of the clause in question, it is expressly provided that the addition or omission shall in no wise ■affect the contract or make void the contract, but that the value of such addition or omission is to be added to or deducted from the amount of the contract. It is apparent that the only office which this provision serves in the contract is to guard'againstany -claim that it should affect or nullify the contract or any of its provisions.^* The question in regard to payment or deduction for work -ordered which is not mentioned in the contract, or work omitted which has been mentioned in the contract, refers only to the regulation of the amount to be paid or to be deducted. Payment for such extra work is to be made at a fair and reasonable valuation, and in case of the omission of work ordered to be done by the contract a reasonable deduction is to be made. What this part of. the provision was intended to cover is somewhat problematical, as-no case has ever come before the court upon a building contract in; which there had been an omission for which the owner was claiming a deduction. There is undoubtedly some relation between: the extra work and the work contemplated by the contract, because if the work upon the contract should be done in so poor and negligent a manner as to render the extra work valueless, then, although it was not included in the contract, the builder could not recover. But unless some such condition of affairs as has been suggested is shown to exist, the builder is entitled to recover the full value of his extra work, although, perhaps, he may not have completed his contract in accordance with its requirements. Woodward v. Fuller, 80 N.Y., 312.

It seems to us, therefore, that there should be a new trial of this case, in consequence of the errors committed, before another referee, with costs to the appellant to abide the final event.

O’Brien and Patterson, JJ., concur.  