
    Patrick Flaherty, Resp’t, v. Henry C. Miner et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1889.)
    
    1. Evidence—Watveb.
    Where evidence of a waiver of a stipulation in a contract is admitted without objection, defendants cannot afterwards object that it is not pleaded.
    
      2. Same—Competency.
    In an action for a balance due for excavating a cellar where defendant alleged an abandonment of the contract by plaintiff, and testified that after such alleged abandonment, he employed others to carry away the earth and gave a ticket for each load, Held, that evidence as to the number of tickets issued was not admissible.
    
      3. Same—Review.
    An exception to the allowance of a question does not require a review where the question is not in effect answered, and the witness has previously testified in substance to the same matter without objection.
    Appeal from a judgment of this court, entered upon the verdict of a jury in favor of plaintiff for $3,145.68. The action was brought to recover $2,600, with interest from October 1, 1881, balance due for excavating the cellar for the building of defendant, and for $500 for extra work under verbal contract. The jury awarded plaintiff $2,000 with $780 interest.
    
      James M. Smith, for app’lts; Abbett & Fuller (Henry Schmidt, of counsel), for resp’t.
   Daly, J.

The principal of contention of defendant upon this appeal is, that by the contract between the parties, plaintiff was to obtain the architect’s certificate as a condition precedent to payment, and that as he had failed to obtain such certificate for the work for which he claims in this action, he ought not to recover. This objection may, I think, be disposed of by a reference to a stipulation entered into by defendant for the purposes of the trial. The plaintiff had alleged in his complaint that there had been inserted in the written contract, by mistake (plaintiff being unable to read or write), certain provisions, among others those relating to the architect’s certificate, which were no part of the actual agreement between the parties, and he prayed that the contract might be reformed by striking out those provisions. The cause was placed upon the equity calendar of the court by plaintiff, but upon defendants’ stipulating as hereafter mentioned, the cause was stricken from the equity calendar and a trial by jury directed.

The stipulation of defendants was that the case may be-tried before a jury with the same effect as if tried at the-equity term as to the reformation part, and at the opening of the case defendants’ counsel stated “ that there was no necessity for any reformation of the contract, * * *' that the defendant makes no claim that the plaintiff was to-do anything other than the excavating, digging, removing of all earth, bowlder and other matter, and leave sand for completion of work on the premises 312 and 314 Eighth avenue for the sum of $3,500, payments to be made as the work progressed; that the contract did not include underpinning of adjoining premises, and rocks were to be removed by other parties.”

In this statement of claim as to the obligations of plaintiff under his contract with defendants, there was an omission, or waiver, of any claim that payments under the contract were conditioned upon the procurement of an architect’ s certificate. All evidence upon the issues arising upon the pleadings as to reformation of the contract were excluded upon defendants’ objections, and it would seem that the question of the architect’s certificates was thus eliminated from the case. The stipulation and statement of defendants as to their claim under the contract were-made in order to relieve the plaintiff and the court from trying the issue as to a reformation of the contract, and. concedes plaintiff’s position as to the actual contract between the parties.

But even if the stipulation and statement did not have-this effect, and the plaintiff were bound under his contract-to procure the architect’s certificate, there was abundant proof in the case to show the defendants waived this requirement. That question, together with the issue of fact as to the alleged abandonment of the work by plaintiff, were submitted fairly to the jury, and their verdict in plaintiff’s favor has ample evidence to sustain it. The evidence of waiver was admitted without objection, and defendants could not afterwards object that it had not been-pleaded.

The exceptions of defendants were not well taken. The motions to dismiss the complaint were properly denied. The judge’s charge was proper. The exception at folio 210 was not good, as the questions as to the architect’s certificates were out of the case. The exception at folio 267 was1 not well taken, as the question did not call for the earth removed, but the “number of tickets” upon which defendant settled with third parties for cartloads of earth. The exception at folio 285 was not well taken, as the question called for a conclusion. .There is no exception at folio 201. The exception at folio 331 does not call for a revisal, because the question allowed to be put to the witness was not in effect answered.

The previous answer of the witness (which was not objected to) contained in substance the same testimony as that objected to.

The judgment should be affirmed, with costs.  