
    Winfield S. Velsor, Resp’t, v. James W. Eaton, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 11, 1891.)
    
    Contract for building—Broken by owner—When action lies.
    Where a building contract is broken by the owner’s refusal to allow the contractor to proceed, the clause in the contract which provided that all dispute as to the construction of the work should be settled by the architect, and as to value of extra and omitted work should be settled by arbitration, ended with it, and the contractor, being free from fault, may bring his action for work done and materials furnished.
    Appeal from a judgment entered upon the report of James H. Tuthill, Esq., referee.
    
      Fishel & Reid, for app’lt; Wilmot M. Smith, for resp’t.
   Barnard, P. J.

—The plaintiff made an agreement with the defendant on the 1st of March, 1887, to erect and furnish for him, in a good workmanlike manner, a building at Babylon, for the sum of $6,789. The work was to be done under the supervision of an architect, who was to give a certificate of strict performance,. to entitle the builder to the several payments. The building was to be completed by the 1st of January, 1888. In the early part of March, 1887, the defendant took possession of the house in an unfinished state; $1,500 had been paid upon the work, and it was proven that it would take $726.11 to finish the building, and that there was omitted, by the defendant’s request, work valued at $930.07. The balance due on the contract was $3,663.11, if the-defendant was not justified in stopping the work. There was no certificate of the architect given, but this would not justify the defendant in preventing a performance of the contract. The case is quite voluminous, and is addressed to many minor issues. The chief issue tried was, whether the delay in the building was caused by the omission of the architect to furnish details of the work with sufficient promptness, to enable the plaintiff to finish the corn tract within the time.

The referee finds that the plaintiff had men and materials sufficient to complete the work, and that the delay was occasioned by an omission of the architect. A careful reading of the testimony leads us to sustain the findings on these questions. It follows, that the contract was broken by the defendant, and the consequences which follow are to be attributed to his violent action.

The contract was at an end, and the clause in the contract that all dispute as to the construction of rhe work should be settled by the architect, and all dispute as to-value of extra work and omitted work should be settled by arbitration, ended with it. The plaintiff, if free from fault, could bring his action to recover for work done and materials furnished, to be proven in the ordinary way, before a court having jurisdiction to try such an action.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  