
    Alfred E. Stone, Respondent, v. Abraham Cohen and Others, as Executors, etc., of Julius Lipman, Deceased, Appellants, Impleaded with Francis McCormick.
    
      Contract in writing — oral waiver of its conditions — estoppel, to refuse to pay an accepted order.
    
    An action was brought by the assignee of one Burke to recover the amount of an order drawn by the defendant Francis McCormick upon one Julius Lip-man, the defendant’s testator, by which Lipman was requested to pay John Burke the sum of §850 “when the white coat mortar is on house No. 164 and 166 Bast 112th street,” and accepted by Lipman in the words “Accepted. Payable when white coat payment becomes due- and payable according to the terms of builder’s loan agreement on house south side 112th street.” An agreement relative to the house in question had been executed between Alice McCormick and Lipman, by which Lipman agreed to advance to her in payments of §1,000 each, made at various stages of the work of constructing the house in question, a total sum of §10,000, the seventh payment to be made when the white coat of plaster was on and the stairs were up, but Lipmtn to have the right, if he chose, to make any payment before it was due, without waiving his right to enforce the agreement; if the work was suspended for ten days, or if any mechanic’s lien should be filed against the premises and remain unsatisfied, for ten days Lipman might refuse to make any further advances. John Burke, who was the contractor for the plastering work, and was to be paid in part when the brown mortar was on, in part when the white mortar was on, and the balance when the work was completed, refused to proceed when the brown mortar was'on unless he had security, and in order to secure him the order in question was given.
    When Lipman accepted the order Burke told Lipman that there were some liens on the building, and Lipman told him to go on; that he would see that he was paid, and also said that there was a payment due when the white mortar was on; in fact, there were then upon the building two liens and soon after a third lien was filed.
    
      Held, that Lipman had waived the provision entitling him to refuse to pay if liens remained on file against the property for more than ten days;
    That he had done this to induce Burke to go forward with his contract, and that his executor was not in a position to interpose that clause as a defense to a claim upon the part of the plaintiff as the assignee of Burke.
    Appeal by the defendants, Abraham Cohen and others, as executors, etc., of Julius Lipman, deceased, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 8tli day of April, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of April, 1895, denying the defendants’ motion,for a new trial made upon the minutes.
    
      George H. Yeaman, for the appellants.
    
      M. E. Duffy, for the respondent.
   Patterson, J.:

This action wa orought upon an order for the payment of money drawn by the defendant Francis McCormick on the defendant Julius Lipman. and dated the 14th day of February, 1890, by which order the defendant Lipman was requested to pay to John Burke the sum of $850- “ when the white coat mortar is on house Ko. 164 and 166 East 112tli street.” This ordér was. presented to ' the defendant Lipman, who accepted it. in the following words: “ Accepted. Payable when white coat payment becomes duo and payable according to terms of builder’s loan agreement on house south side 112th street.” The claim thus arising was assigned by John Burke to this plaintiff. The complaint alleges the performance of the condition upon which the amount named in the order became1 due and payable according to the terms of the acceptance. The separate answer of the defendant Lipman (who has died since the trial) admits the making and acceptance of the order, but sets up in" connection with such admission that there was a certain builder’s loan contract or agreement relating to the house mentioned in the acceptance, which agreement was executed between one Alice McCormick, the wife of Peter McCormick, and the defendant Lip-man, providing for the sale by Lipman to Alice McCormick of a lot of ground, being that referred to in the complaint, upon certain, terms, and subject to certain mortgages, and further providing that Alice McCormick should build' upon the premises a five-story tenement house, Lipman contracting to advance her the sum' of $10,000 to he secured by a mortgage for that amount, in payments of $1,000 each at various stages of the progress of the work of building. By a clause of the agreement, it was provided that the sum of $1,000, the seventh payment, should be paid when the white coat of plaster was on and the stairs up, but that Lipman might make, at his option, any of the payments under the contract before they became due, according to the strict terms of the agreement, without waiving his right to enforce such terms, and it was also provided that if the work were suspended for ten days, or if any mechanic’s liens should be filed against the premises and remained unsatisfied or on file for ten days then Lipman might refuse, at his option, to make any further advances to Mrs. McCormick, and that both the principal and interest on the mortgage should become due. It would appear that Alice McCormick disposed of her interest in this contract and property to Francis McCormick, and that Francis McCormick subsequently assigned to one Young, who seems to have become jointly interested with him in the building enterprise.

John Burke became connected with the transaction by reason of his being the contractor for the plastering work upon the building,' under a contract made December 9, 1889, to plaster the house for the sum of $1,850, which he was to receive in three payments, namely, $800 when the brown mortar was on, $900 when the white mortar was on, and $150 when the plastering was fully done.

It sufficiently appears in evidence that the contractor, Burke, fully performed his contract concerning the plastering. When the brown mortar was on, Burke was unwilling. to proceed further without being in some way secured for future work under his contract, and the order sued upon was given for that reason. Evidently it was intended to secure the greater part of the installment that would become due for the white plastering. It is so stated in the evidence and in the order and in the acceptance, all of which indicate that it was Lipman’s agreement to pay the order out of the particular $1,000 installment to become due when the white plastering was on and the stairs were up. At the time the order was accepted, Burke told Lipman that there were some liens on the building, and Lipman said, “ ‘ Go airead, * * * never mind,’ that ‘ I will see that you are paid; ’ ” and he also said that there was a payment due McCormick when the white mortar was on. The liens then on the premises were the first two mentioned in the answer of the defendant Lipman. On the 13tlr of March, 1890, another lien for $1,600 was placed upon the building, and the defendant -Lipman claims that he was, therefore, not liable iipon the order.'

The evidence shows that Burke fully completed his contract for the plastering, and the questions arising in the case are purely as to matters of fact. At the trial there were three of such matters litigated, each of which was submitted to the jury Under proper instructions and in a very clear way by the learned justice presiding. The distinct question arose as to the liability of Lipman upon the order, notwithstanding breaches of the building . loan contract respecting the completion of the white plaster coat and the stairs, and also respecting the filing of liens and their remaining on record for more than ten days.

Upon the subject of the completion of the work, in accordance with the ■ requirements of the contract and of the acceptance of the order, the defendant requested the court to charge that, unless the jury believed that the order sued on became due and payable under the terms of the building loan agreement referred to in the defendant’s acceptance of the order relating to the white plaster coat and the stairs, they must find for the defendant. . That instruction was given to the jury in the words of the request.. They were charged concerning the state of the evidence, upon that point, and there was Undoubtedly sufficient in the case to show not only that the work was done, but that Mr. Lipman himself admitted, iu his conversation with Burke,, that it was finished in time, and in such a way as. to entitle. Burke to the payment of the. money. It is unnecessary to refer specifically to the particular evidence upon that subject, but there was testimony that Lipman acknowledged his liability to pay, and urged Burke to go on with the work of ■ patching and pointing up, and thus to complete the last work under his contract in a manner to entitle him to a third and final payment. -

On the subject of the- existence-of the liens upon the property, -the-defendant requested the court to. charge the jury that if they believed from the evidence that the mechanic’s lien of $1,600 placed on. the- property on the 12th of March,-1890, was allowed to remain on. record ten days, they must find for the defendant, even though they believed that the work had' been completed according to the contract.. This the court charged-, but with the very material addition that" if the jury believed from the evidence that the condition as to-mechanic’s liens was waived -the instruction would not be applicable.- The whole contention on the part of the plaintiff with respect to the-mechanic’s liens was that they were- waived from the beginning-that is to say, from the time -of the inception of the $850 order. That order was dated on the 14th day of February, 1890, and with reference to it and its acceptance the testimony of Burke is that when the order was presented to Lipman, Burke said: “ There are a couple of liens on there.” Lipman said : “ Never mind that; I will see that you are paid,” and that he had “ enough money; ” “ go ahead.” The witness also testified that Lipman told him that there was a payment due McCormick when the white coat of mortar was on, and also that there was a white coat payment coming due, and that he would secure that. This was relied on as a waiver of any condition respecting mechanic’s liens, and evidence was given of what transpired between Burke and Lipman on the 10th day of March, 1890, indicating that Lipman’s own construction of the conversation of February 14, 1890, was that all conditions of the contract, the building loan, as to mechanic’s liens, were waived in favor of Burke, in order that he might be induced to go-, on and complete his plastering contract. On the tenth of March Burke had an interview with Lipman, and then stated to Lip-man that the white coat of mortar was on, and that his payment was due. He testifies that Lipman said: ■ “ All right, Mr. Burke, but * * * I am property poor at the present time, and if you will wait a few days I will give’ it to you.” He said there was still money due to McCormick, and that he had the money still in his possession. He told Burke not to be afraid, to go ahead and finish the work and point up, which -would come under another payment, and he would make the two together. He said that he would see Burke paid, who remarked : “ There are liens going on there.” He said: “Never mind the liens, go ahead and finish up and I will pay you ; my word is as good as that paper.” All this was evidence going to show a complete waiver on the part of Lipman of any right he might have had to insist upon the provisions of the contract respecting liens. The testimony as to what took place on March tenth was not offered as establishing a new promise on the part of Lipman, but as evidence of what his understanding was concerning the liens at the time he accepted the order for the $850 as well as at -the date of the last conversation. - Now,-the lien for $1,600 was not filed until March 13, 1890, three days after the conversation of March tenth. . There was, therefore, abundant evidence to go to the jury that oipMarch tenth Lipman had promised to pay the order, and recognized that he had waived all stipulations respecting liens theretofore placed, or thereafter to be placed, upon the property, and reiterated what he had substantially bound' himself to, respecting liens at the time the order was given. The conflicting evidence on the subject of this Avaiver veas properly submitted to the jury, and upon that subject their Arerdict should not be interfered with.

Another question of fact arose with reference to some arrangement having been made between Burke and Young, by Avhich the former agreed to look to the latter for the payment to be made for his plastering under the contract Avith McCormick so as to relieve Lipman from his obligation to pay the order sued upon. The court was requested to charge the jury with reference to this matter, and-the request was complied with in the language in Avhich it was presented to the court.

There was a dispute as to whether or not certain notes given by Young Avere given on account of the work done by Mr. Burke, but Burke, expressly swears that he received only tAvo note's of $300, which were accommodation notes of Young given to him - to -raise money upon, but that they were utterly worthless and that no money was raised upon them, and that they were in no sense intended for or accepted as payments oh account of the plastering work, nor recognized as obligations of Young given on account, of that Avork. Whether they were or not was submitted to the jury, who found against the defendant Lipman on that issue of fact.

We find no error in the Avhole tidal of such a character as would call for a reversal of the judgment as to the defendant Lipman. The plaintiff’s claim upon the order is a just one for work fully and honestly performed and the judgment should be affirmed.

Judgment and order denying motion to set aside the verdict and' to grant a new trial affirmed, with costs.

Van Brunt, P. J., Barrett, Bumsey and Williams, JJ., concurred.

Judgment and order affirmed, with costs.  