
    The Graves Elevator Company, Plaintiff, v. John H. Parker Company and Others, Appellants, Impleaded with Albert Oliver and Cornelius A. Burr, Doing Business under the Firm Name of Oliver & Burr, Respondents, and The City of New York and Other, Defendants.
    
      Amendment substituting an allegation of partial performance of a contract for one of complete performance—a referee may allow it on the trial—what precludes a, principal contractor from objecting to a subcontractor's work—effect of the architects certificate— claim for extra work disallowed.
    
    A referee appointed to hear and determine the issues arising in an action has power, upon the trial thereof, to permit the-answer of one of the defendants, which alleges complete performance by such defendant of a building contract, to be amended by alleging performance of the contract, except in certain specified particulars, performance of which has been Waived by the other party to the contract. Such an amendment does not substantially change the cause of action.
    Where the principal contractor for the construction of a building, accepts the work of a sub-contractor tenders it as a compliance with the principal con- . tract, obtains the certificate of the owner’s architect that the principal contract has been performed, and receives payment of the contract price, he is not in a position to say that the sub-contract was not completed in accordance with the terms and specifications of the original contract.
    The architect’s certificate that the principal contract had been satisfactorily performed, is a sufficient compliance with a provision of the sub-contract requiring the material and labor furnished by the sub-contractor to be satisfactory to the architect.
    What claim for alleged extra work performed by the sub-contractor should be disallowed, where neither the principal contractor nor the architect admitted it to have been extra work, but insisted that it be done as part of the work called for by the contract, considered.
    Appeal by the defendants, the John H. Parker Company and others, from a judgment of the Supreme Court in favor of the defendants, Albert Oliver and Cornelius A. Burr, doing business under the firm name of Oliver & Burr, entered in the office of the clerk of the county of New York on the 14th day of May, 1903, upon the report of a referee.
    
      Joseph Hettretoh, for the appellant John H. Parker Company.
    
      Henry Sehoenherr, for the respondents. .
   Ingraham, J.:

The question presented upon this appeal involves the right of the respondents,, defendants, to recover from the appellants, defendants, the balance due upon a contract made for plastering a building which was in course of erection by the appellants for the city of New York. The respondents filed a lien against the amount due to the appellants from the city, and the appellants subsequently gave the bond upon which the lien was discharged; and the question presented is as to the right of the respondents to recover from the appellants the balance due upon the contract.

The answer of the respondents, which was served upon the appellants, alleges a complete performance of the contract. All. of the issues in the action were referred to a referee, and after one of the respondents had been called as a witness and it appeared that they Izad not fully performed their contract, an application was made to the referee to amend the answer by setting lip that the contract had been performed, with certain exceptions1 specified, of which- per- , fomnance was. waived by the appellant.. This amendment was .-allowed', to which the appellants excepted, claiming that the referee liad no power upon the tidal to- allow such an amendment. There was no claim of surprise. The case was on tidal before a referee. The, amendment was made when the respondents offered their proof, and it. is not claimed but that. the. appellants had ample -opportunity at subsequent sessions of the reference to. meet the •ease presented by the respondents.

We think the referee had power to allow the amendment. The notion is upon a. contract1 by which the appellants, agreed to pay to the respondents a sum of money for furnishing the material and doing certain, work in the. construction of this building. Whether the right to z:ecover was based upon a complete pei'formance of the ■contract or a performance with the exception of certain particulars the performance of which was waived by the appellants, did not ■change the cause of action for which a recovez-y was sought. The ' cause of action was still upon the contract, to recover .the amount due under it. The court has power to allow an amendment i'ipon' the trial where' the amendment does not substantially change the cause of action to which the amendment relates; and as this cause •of action was not at all changed' by the amendment, there can be no doubt, we think, but that it was within the power of the referee, to allow it.

By the contract which is the basis of this cause of action,, the respondents agreed “ to furnish the materials for and do all the lathing and plastering work shown, on. plans and called for in the specifications necessary to complete the building known as Museum. Building & Power House in Bronx Park, ÍJ. Y. * - * *. All the materials and labor to be s.atisiactdry to R. W. Gibson,. Architect, and Jiohn H. Parker Company ; ” and the respondents further agreed to do all necessary cutting, drilling and patching in connection with other mechanics,, and to remove from, the premises,, from time, to- time as directed, all dirt and rubbish caused by their work, and for this the appellants agi'eed to pay the sum of $¡15.,700. The contract' between the. appellants and the city specified the plastering. to be done, and it was the' necessary plastering called for by this contract that the respondents agreed to do and for which they were to be paid. After the respondents had completed their work and the contract between the appellants and the city had been completed by the appellants, the architect gave the appellants a certificate which in effect stated that the work called for by the contract with the city had been performed as required by the contract and in a •satisfactory manner, and under it the appellants received from the •city the contract price. We think that this was a sufficient compliance with the ju’ovisions' of the contract between the appellants •and the respondents as to the approval of the architect, and that the respondents were entitled to recover, subject, of course, to proof that the portions of the contract not performed by the respondents had been waived by the appellants, or that the work liad been accepted by them as a complete performance of the .contract.

The only serious question presented is as to the correctness of the •allowance made by the referee for the uncompleted work and for what was alleged to be extra work. The referee disallowed several •claims made by the respondents for extra work; but as there is ho .appeal by the respondents from the judgment, the correctness of the finding of the referee in this respect need not be considered. The referee found that prior to' the filing of their notice of lien, the respondents had substantially performed their contract, except in certain particulars as to which performance was waived by both the appellants and the city; that the respondents were compelled to •do extra work and furnish some extra materials in and about the work which they were required to do by their contract, which extra work and materials were rendered necessary by the acts and facts for which the John H. Parker Company was responsible as between them and the respondents'. The. referee then allowed the contract price, also for certain extra work which was admitted by the appellants, and for certain extra plastering caused by defective brick work and construction, or made necessary by water or frost, aggregating $403.30. For this sum of $403.30 I do not think the appellants are responsible. The allowance is based upon the . testimony •of one of the respondents, and it was claimed that this extra plastering was made necessary by the imperfect manner in which the brick work or the columns for the building had been constructed, and other faults in construction which required more plastering than the respondents considered they were bound to furnish. But by the contract the respondents were to do all plastering required to complete the building, and the claim of the appellants was that the respondents were required to do this.work under the contract, and that in pursuance of that claim they did the work. One of the respondents testified in relation to this work: “ I called Mr. John H. Parker’s attention to it,, Mr. Charles Parker’s attention to it, Mr. Brooks’ attention to it, and claimed that it was not right "to ■ ask me to put on" that much mortar, and I- refused to do it, and I worked back from that point. Afterwards I was obliged to do it. * * * X was obliged to 'do it on orders from the Parker Company and orders from the architect, and always a club held by contractors that they will hold your payments up if you do not do as they want.” By the contract the respondents were required to obey the orders of the architect as to the Work that they were to do, and having done, it as work- to be done under the contract,- considering the form of the contract and specifications, they-cannot now claim that it was extra work that they were not required to do under the contract. It is not claimed that the respondents were ordered to do this as extra work by either the appellants or the architect, bu.t that they were required to do. it as a portion of their work under the contract, and they acquiesced, in that and did the work. The contract itself requires that the respondents should do all the plastering to be done in the construction of this building. I can find no provision in either the contract between the appellants and the respondents,'or that between the appellants and the city, which allows the respondents to claim as extra work the plastering that was made necessary by the construction of the building. I think, therefore, that this claim for $403.30 should be disallowed.

An examination of the testimony does not show that the respondents were entitled to a greater allowance than that made by the referee: The appellants insist that the respondents should not be allowed to recover under the contract, as the referee has found that they did not entirely complete the contract. But the respondents did the work, the appellants accepted that work and .presented it -to the city as a compliance with their contract with the city, received the certificate of the architect that their contract had been performed, and received from the city the' contract price .which the city was to pay for a performance of their contract. Under snch conditions the contractor, who has accepted the work of his subcontractor, and upon that has obtained a certificate.from the architect that the main contract was completed, and received the contract price, is not in a position to say that the sub-contract was not completed in accordance with the terms and specifications of the original contract. It is true that the original contractor would not be required to pay his sub-contractor unless the latter could prove a substantial compliance with the contract; but upon proof of a substantial compliance so far as the same was insisted upon by the original contractor, with an allowance for such of the work as, with the acquiescence of the original contractor, was omitted, no injustice is done and no rule of law prevents a recovery. There was evidence in this case to sustain the finding of the referee that a complete performance of this contract by the respondents ■ was waived, or that the changes that were made were' made under conditions which would justify a finding that they were consented to by the appellants, and the appellants were amply protected by the allowance that was made for the work that was not1 completed.

We think, therefore, that the judgment should be modified by reducing the judgment as entered to the sum of $3,647.84, and as thus modified it should be affirmed, without costs of this appeal.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment modified by reducing judgment as entered to the sum of $3,647.84.  