
    Helen E. Porter, Respondent, v. Alden S. Swan, Appellant.
    (City Court of Brooklyn
    General Term,
    November, 1895.)
    In an action for extra work performed under a building contract, the fact that the bill for extra work was not presented until the contractor had received the final payment under the contract does not require the appellate court to hold that the denial of the owner is entitled to more weight than the affirmative statement of the contractor.
    Where the answer in an action upon a building contract does not allege that there was a dispute .as to value, or an offer by defendant or refusal by plaintiff to submit such dispute to arbitration in pursuance to the -terms of the contract, the plaintiff is not required to produce a certifl-
    - cate of valuation or show that-defendant refused to carry out the agreement to arbitrate, or' that the appraisers unreasonably refused a valuation.
    Where the architect has given a certificate that the building is finished, and - ' by -the contract he could not determine the value of the extra work, the contractor is not bound to -furnish any other certificate in order ,to ; recover for the extra work.
    
      Appeal from judgment in favor of the plaintiff, entered, upon the report of a referee.
    
      Bergen dk Dyl&mem, for appellant.
    
      Daniel S. Cernieron, for respondent.
   Clement, Ch. J.

This action was brought to recover the value of extra work and materials on two building contracts, one for the erection of a dwelling house, and the other of a stable. The referee reported in favor of the plain-' tiff for the sum of $52 for extra work on the stable, and for the sum of $1,132.96 for extra work on the house. The defendant contests, on this appeal, only the claim of plaintiff for the extra work on the house.

There was a sharp conflict in the testimony. The assignor of plaintiff, Elihu Porter, who was the contractor, was contradicted by the defendant. There seems to be no reason why the report of the referee should be set aside as against the evidence. The rule is well settled that a referee or a trial judge is more competent to pass upon the testimony than judges who: sit upon appeal, who do not see the parties, and. only read their testimony in a printed book. The fact that the contractor did not present his. bill for extras until after he had received his final payanent on the contract does not require the appellate court to hold that the denial of the defendant is more weighty than the affirmative statement by the contractor. This was a matter to be considered by the referee, and his conclusion is binding on us.

We held on the former appeal (Porter v. Swan, 17 N. Y. Supp. 351) that the clause in the specifications that no allowance should be made for extra work to the contractor, unless its value should be agreed upon in writing before the performance, copld be waived by the acts and subsequent oral agreements of the parties. We based our decision on the case of Stout v. Jones, 9 N. Y. St. Repr. 570; affd., 120 N. Y. 638. Thei'e is testimony in the case which, though contradicted, was believed by the referee, tending to show that the clause in question was waived, and that no attention was paid to it except in a single instance where the value-was agreed upon "before" the item of extra work was performed.

The contract contained a- clause that should any dispute arise- respecting the true value of the extra work the same should be valued by two competent persons, one employed by the owner and the other by the contractor, and that the two should have power to name .an umpire whose decision should be' binding. It"is contended by the appellant that the respond-ent was bound, under this- clause, to prod-uc.e a. certificate of valuation or show that -the defendant refused-"to carry out his agreement to arbitrate, or that, after appraisers were appointed, they unreasonably refused a valuation. This.,question seems to have been considered -by the Court of Appeals in the case of Varian v. Johnston, 108 N. Y. 645. Judge Eabl there said: “ There is no allegation in the answer that there was such .dispute or that the- plaintiff refused to submit any -such dispute to arbitration." or that the defendant ever offered to submit the dispute to arbitration, and there was no proof of any refusal on the part of the plaintiff, or any offer or request •on the part of - the defendant, to submit the -valuation of the extra, work to .arbitration. The refusal to pay t-lie plaintiff, when the demand was made by him for payment before the com-. men cement of the action, was not put upon the ground that any dispute should first be settled by the architect or by arbitration, and the defense cannot -now prevail.” Iii the case of Smith v. Alker, 102 N. Y. 87, 92, it was decided, under a similar clause,, that it was as much the duty Of the defendant as of the plaintiff to take steps- for the selection -of arbitrators. The. defend-, ant in this case,, before the action was brought, refused to pay, not on the ground that" the arbitration clause had not been carried out, but. for other reasons. Applying the law" as decided by the Court of Appeal's, we .hold that this point, that there was no- arbitration as to values of extra work, was not well taken.

. ■ Another point is made that the architect- was allowed to testify that the extra work was done to his satisfaction, and.' nc# certificate of the architect was produced as to the extra work. The defendant produced and put in evidence the certificates of the architect called for by the contract. The last jjayment made was $900, which, by the contract, was due when the contract was completed. The architect certified that the house Was finished, and by the contract he could not determine the value of the. extra work. We think that the architect furnished the certificates as required by the contract, and the plaintiff was bound to furnish no other. The answer given by the architect.was not material to the issue, but it in' ' no way prejudiced the rights of defendant.

The other questions raised by the appellant seem to be of fact, and, as the testimony was conflicting, as said before, we cannot disturb the decision of the referee.

Judgment affirmed, with costs.

Van Wyck and Osborne, JJ., concur.

Judgment affirmed, with costs.  