
    (100 App. Div. 282.)
    OLSEN v. SCHWARZWAELDER.
    (Supreme Court, Appellate Division, Second Department.
    November 24, 1905.)
    Contracts—Building Contract—Performance—Decision of Architect—
    CONOLTTSIVENESS.
    A building contract, providing for payment in installments on the certificate of the. architect, and declaring that the certificate shall not lessen the final responsibility of the contractor, nor exempt him from liability to replace work, on it being subsequently discovered that the same was not done according to the specifications, does not make the architect’s certificate conclusive on the parties, and the contractor cannot recover the balance due under the contract, on it being shown that the contract has not been substantially performed, though he procures the architect’s certificate reciting that the work has been done according to contract.
    Appeal from Trial Term, Queens County.
    Action by Anton L. Olsen against Frank Schwarzwaelder. From ■a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals.
    Affirmed.
    Argued before BARTLETT, WOODWARD, HOOKER, RICH, and MILLER, JJ.
    Joseph Williams, for appellant.
    Charles B. Bretzfelder, for respondent.
   . WOODWARD, J.

The. plaintiff brings this action to recover the balance alleged to- be due him under the provisions of a building contract. The complaint alleges the making of a contract for the-construction of certain buildings for the defendant in the state of New Jersey and the completion of the same according to the terms and conditions of the contract, the agreement of the defendant to-make payments according to a certain schedule upon the certificate . of the architect, the payment of certain of these installments, and the refusal of the defendant to make a final payment. Upon the-trial of the action evidence was introduced, without objection or exception now urged, showing that the contract had not been substantially performed, but that very material matters had been omitted, and upon the case being submitted to the jury a verdict in-favor of the defendant was rendered. From the judgment entered upon such verdict, and the order denying his motion for a new trial,, the plaintiff appeals to this court.

It is urged on the part of the appellant that as the payments were-to be made upon the certificate of the architect, and as such certificate was secured and presented by the plaintiff, he is entitled to his pay; that this certificate, under the authorities, is conclusive upon both parties. This does not appear to have been the theory upon which the case was tried, and we are persuaded from the reading of the contract that the certificate of the architect was not intended to-be final. Indeed, the language of the contract is that:

“In each of the said cases, a certificate shall first be produced, signed by the said architect, to the effect that the work is done in accordance with said; drawings and specifications, said certificate, however, in no way lessening the total and final responsibility of the contractor. Neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the drawings and specifications,, either in execution or materials.”

Obviously the parties never intended by this agreement to place it in the power of thé architect to arbitrarily determine the amount due under the contract, and the case was tried upon the theory that the defendant had the right to contest the quality and the completeness of the work. Upon the issue thus presented, which certainly gave the plaintiff all the rights that he could possibly claim under his pleadings, the jury has found against him; and, as there are no-exceptions urged, only one thing remains, and that is the affirmance of the judgment.

The judgment and order appealed from should be affirmed, with-costs. All concur.  