
    Frederick A. Peterson, Plaintiff and Respondent, v. Edmund G. Rawson, Appellant.
    When an architect, who undertakes to superintend the erection of a building, which carpenters and masons contract to build and finish according to certain plans and specifications, and to the satisfaction of such architect, and who are to be paid in instalments, as the work progresses, and on production of the architect’s certificates that they have become entitled thereto, such architect, to entitle himself to demand the compensation agreed to be paid for his services, must bestow such care and attention, that the carpenters and masons will not make any material variations from the plans and specifications, which ordinary care and attention, when bestowed by a competent architect, would detect and prevent, or detect in time to be remedied.
    If he fail to bestow such care and attention, and in consequence thereof, the building is not constructed according to the contract, and damage to his employer results, he loses his claim to compensation, notwithstanding an action will lie, at the suit of his employer, against the contractors, to recover the damages; and although his employer may have settled with such contractors, in full, after the architect had refused to give them the certificates, which the contract required, as a condition to their right to be paid.
    The architect, on the evidence given, having failed to bestow such care and attention, and the building having been defectively constructed, in consequence of such neglect, the judgment entered, on the report of a referee, finding that he was entitled to full payment, reversed, and a new trial granted.
    (Before Bosworth and Hoffman, J. J.)
    Heard, Nov. 15th;
    decided, Dec. 6th, 1857.
    This case is brought before the Court, on an appeal by the defendant from a judgment entered in favor of the plaintiff, upon the decision of a referee.
    The plaintiff, an architect by profession, entered into a contract with the defendant, to furnish him with plans, sections, elevations and specifications, with a general estimate of the expense of erecting ; and to superintend the erection of, a new dwelling, about to be built by the defendant, in Lexington Avenue. The compensation was to be five per cent, on the cost, not exceeding $10,000. The payments were to be made at periods specified.
    The compensation amounted to $500, and $350 have been paid. The balance, $150, was to be paid upon the completion of the building. This action is to recover that amount.
    The defendant insists, that the plaintiff did not fulfil his agreement ; that he did not properly and - efficiently superintend the building, while the work was progressing, according to the terms of the agreement. The answer then sets forth various particulars, in which the plaintiff had neglected his duty.
    The referee, to whom the action was referred, finds, that certain variations were made By the defendant himself from the plan, as originally adopted; and that the building was otherwise erected and finished in accordance with the plans, except that the balcony in front, and the front parlor windows, were about two inches and three-quarters higher from the parlor floor than was shown on the plan, and the front parlor windows were about the same distance higher from the parlor floor than the back parlor windows. A discrepancy in the height of the lowest step of the stoop is also .found; and the effect of the change in the balcony and windows is pointed out.
    He also finds, that the discrepancies and variations from the specifications and plans were in the work contracted to be done by the masons; that the variations in regard to the balcony and front parlor windows arose from the masons not having accurately conformed to the said specifications and plans, and the variations in the height and appearance of the lower step of the stoop, and the plan thereof, arose, partly, from the same cause, and partly, from the grade of the street not being level, as it was assumed to be on the plans.
    That the plaintiff, in superintending the building, bestowed as much of his time and personal attention thereto, as is customary for architects, in such cases, or as is necessary, where the work is being done by competent builders; and that the variations, above mentioned, from the plans, were not caused “by carelessness, negligence or inattention, on his part.”
    
      That, after the building was finished, the plaintiff refused to give a certificate to the said masons, to entitle them to receive the last instalment of $1900, under their contract with the defendant; but that the defendant, nevertheless, paid or settled with them in full, for all claims, on their part, under such contract, without requiring such certificate.
    The referee, upon these facts, held that the balance of $150 was justly due from the defendant. Exceptions to the decision were duly filed, and from the judgment entered on the referee’s report this appeal is taken.
    5". H. Morange, for plaintiff and respondent.
    
      J. M Palmer, for defendant and appellant.
   By the Court. Hoffman, J.—

The referee appears to have placed his decision chiefly upon the ground, that the refusal of the plaintiff to give the last certificate to the masons, and his general attention to the supervision of the work, entitled him to recover.

The default of the masons is admitted. Its effect upon the appearance of the room and otherwise, is found; and it was a defect as well as a deviation from the plan.

It may well be, that if a variation from the plans and specifications was of such a nature as not to be open to detection with ■ ordinary vigilance, and disclosed itself only at a future stage of the building, a refusal to give the certificate when the fault was discovered, would justify the architect in still claiming his compensation.

But if ordinary care in superintending the work could detect a fault and lead to its immediate correction, or subject the contractor to suspension of his next payment, or perhaps the forfeiture of his contract, the architect cannot set up the possibility of his employers 'obtaining redress by withholding a future payment, to prevent his own neglect defeating his own action. His undertaking was to superintend the progress of the building; and the contract with the masons placed them entirely under his control. The work was to be done to his satisfaction, and under his direction ; and his decision was to be final. The proposition cannot be maintained, that he can be entitled to his compensation in a case of his own neglect, because the owner could have obtained pecuniary redress, in another mode, from another person who has also broken his contract in respect to the same matter.

According to the evidence in this case, the error could have been detected, and the work stopped to correct it, at least, when the second-story beams were laid. Full four instalments were paid, in certificates given by the plaintiff, as architect, after this was done. Besides, his attention was called to the height of the balcony by one of the witnesses.

It appears to ns, upon the testimony in this case, as it is now presented, that whatever may have been the general and deserved reputation of the plaintiff, and however strong the evidence of his giving such supervision as is ordinarily bestowed by architects, there was a failure in one particular, which is sufficient to defeat his action for the balance of his compensation.

Judgment reversed, and the report set aside. Hew trial ordered, and the rule of reference discharged. Costs to abide the event. 
      
       A person pursuing a privileged profession or trade, as an attorney, broker, or factor, is bound to exercise the care and skill properly belonging to the business he undertakes, and is responsible for the want of it. (Parson’s Merc. Lam, 156, note 8, and p 159.)
     