
    Daniel J. Early, as Receiver of the Property of Benjamin Weeks, Respondent, v. James O'Brien, as Executor, etc., of Ellen O'Brien, Deceased, Appellant.
    
      Building contract — liability of the contractor where a basement floor, agreed “tobe made perfectly watertight” and, “warranted,” is made of the required thickness and leaks — approval by the architect of the plan of a sub-contractor.
    
    Where the specifications of a building contract provide, “The whole of the basement floor to be made perfectly watertight, with concrete or asphaltum, and must be warranted,” the delivery to the contractor of working plans, simply delineating between two lines drawn thereon a cellar floor six inches thick, does not operate as .a representation by the owner or architect that a cellar floor six inches thick will be watertight, or relieve the contractor from his obligation to furnish an absolutely watertight, floor, especially where the contract provides: “ The specifications and the drawings are intended to co-operate, so that any works exhibited in the drawings, and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings, to the true meaning and intention . of the said drawings and specifications, without any extra charge whatsoever.”
    Where a sub-contractor employed by the contractor constructs a Cellar floor seven inches thick which does not prove to be watertight, the contractor is not relieved from the duty to make it watertight by. the fact that the method of construction adopted by the sub-contractor was approved by the architect, and that the latter was present during the progress of the work and gave directions in regard thereto.
    Appeal by the defendant, James O’Brien, as executor, etc., of Ellen O’Brien, deceased, from a judgment of the Supreme Court in favor.of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Abram Kling, for the appellant.
    
      Brainard Tolles, for the respondent..
   Ingraham, J.:

This action was commenced by one Benjamin Weeks to recover from Ellen O’Brien the amount unpaid under a contract by which the plaintiff was to erect a building upon certain premises belonging to the defendant. Upon the first trial the complaint was dismissed upon the ground that there was no allegation or proof that the certificate of the architect required by the contract had been given, and no allegation that such certificate had been demanded and unreasonably refused. This was reversed by the Court of Appeals upon the ground that, as it had been proven that the defendant had given notice under the 4th section of the contract and had proceeded thereunder to complete the contract, the provision requiring the architect’s.signature was rendered inapplicable; that when the owner .proceeds himself under the contract to complete the work he needs no architect’s signature to apprise him whether the contractor has performed his contract. (Weeks v. O'Brien, 141 N. Y. 204.) Subsequently the plaintiff was appointed receiver of Weeks in supplementary proceedings and was substituted as plaintiff in the action. The -original defendant died and her executor was substituted as defendant; and the complaint seems also to have been amended by alleging that the defendant had given the notice required by the 4th subdivision of the contract, and had taken such work out of the plaintiff’s hands and assumed to complete certain portions thereof, and had excluded plaintiff from further connection therewith, and that subsequently the plaintiff demanded a certificate from the architect, which said architect unreasonably and wrongfully refused to give. By the contract, a copy of which was annexed to the complaint, the plaintiff agreed to erect a new building on the property described, agreeable to the drawings and specifications made by Charles Mettam, architect, for the sum of $17,058; and the defendant’s testatrix agreed that she would, “ in consideration of the covenants and agreements being strictly performed and kept by the.said party of the second part (plaintiff) as specified, well and truly pay, or cause to be paid unto the said party of the second part, his heirs, executors, administrators or assigns the sum of Seventeen thousand & Fifty-eight ($17,058.00) Dollars,” as at the time specified in the agreement. It was further agreed that The specifications and the drawings are intended to co-operate, so that any works exhibited in the drawings, and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings, to the true meaning and intention of the said drawings and specifications, without any extra charge whatsoever; ” and it was also agreed that “ Should any dispute arise respecting the true construction or meaning óf the drawings or specifications, the same shall be decided by Chas. Mettam, and his decision shall be final and conclusive.” By the specifications it is provided: “ All the brick walls, etc., in the basement to be Portland Cement, of the best quality, and great care must be taken to render the walls perfectly watertight, in grouting and filling the walls with cement and plastering them on the outside. * * * The whole of the basement floor to be made perfectly watertight, with concrete or asphaltum, and must be warranted, and the floor to be laid on top in Portland cement, the fronts to be laid up with the quality selected, Philadelphia Front Bricks^ laid in white mortar, and neatly jointed and cleaned down and oiled at the completion with two coats of Linseed oil.”

The plaintiff testified that a complete set of the plans for this building was shown to him by the architect, both before and after the making of the contract, and that subsequently the architect delivered to him, from time to time, working drawings which were taken from the plans; and the witness produced a certain drawing of the basement and. cellar showing a horizontal section of the basement, and another drawing showing the basement floor, piles, foundations, Avails above where they started, with the side Avails and sewer, being a vertical, section of the basement, and these, were introduced in evidence. . By this vertical section of the basement there appeared the cellar walls, with the piles "and concrete foundation upon which they were to be built, and a cellar floor. The concrete foundation which was shown on these plans as two feet in depth by two feet ten inches in width, rested upon the top of the piles, and across from the bottom of each of these concrete foundations extends a dotted line which Avould be two feet below the cellar floor. The plaintiff testified that this- Avas the only drawing of this basement "representing the cellar floor that was given to him by the architect. Counsel for the defendant stated: “ I have stated it, and wish to be understood as again saying, and it may be made a matter of record: We shall confine our defense to the question of the foundation and cellar of. this building. He did not furnish us with a AAatertight cellar, all that work upon the cellar and the AA^alls and foundations was incomplete. * * * Otherwise he performed.” The Avitness then testified that he drove the piles necessary under the direction of the architect; that after the piles were driven they were solid and firm and were cut off square at the tops, and on the top of the piles the concrete was placed, and upon that the cellar Avails were built; that subsequent to that time the plaintiff had a conversation with the architect about the thickness of the floor; that at that time he brought to the architect a contract which he was about to make with one Lumbye as a sub-contractor; that the architect said it Avas better to do it the way the sub-contractor proposed to.do.it; that the architect was then shown the contract with the sub-contractor, and was told by the plaintiff that that, was the way he was going to put it in ; that the architect said it Avas better to do it that way. By this sub-contract the contractor agreed to make a watertight cellar floor in the building in the following manner: “ Two inches of concrete and one layer of asphalt and pitch, and over that four to five inches concrete of Portland Cement, sand and gravel, with a smooth surface.”

In this contract there is nothing said about the depth of the layer of asphalt and pitch between the two inches of concrete and the four to five inches of concrete of Portland cement which was to make the cellar floor; but the floor as laid by the sub-contractor was made up of two inches of concrete on the natural earth ; on the top of that concrete there was a coat of asphalt put on; on the top of that the balance of the concrete, made of the same materials, of the thickness required. The total thickness of the floor was seven inches.' The architect was present and saw this made and applied, gave directions in regard to the work as it went along and they were obeyed. One time the architect instructed that more stone be put into the concrete, and gave no other directions in regard to the concrete while the work of laying the floor was in progress. This cellar floor was laid a fe\V days before the 1st of May, 1882, and after it was put down the water split it right in the center and came flowing in to a depth of nine inches. After this cellar floor broke, the architect had an interview with the plaintiff at which the architect told the plaintiff that if' he (plaintiff) did not take up what had been put in the cellar floor and make it two feet at his own expense he would make the plaintiff fight for his money. The plaintiff told the architect that he had done more than his contract called for and had done it with better materials. The plaintiff refused to comply, and he never did repair this floor so as to make it watertight. On the 21st of June, 1882, the architect wrote to the plaintiff as follows : “ I am instructed by the owner to give you notice, in accordance with the 4th Article of your contract, that after three days from this date, if you do not go on and complete your contract, that the work will be done by other parties, and the expenses shall be deducted from the amount of your contract.” After receiving this letter, the plaintiff did nothing further upon the building. The plaintiff further testified that he never got a certificate from the architect; that the architect refused to give it. He further testified that his sub-contractor, Lumbye, did not complete the work according- to his contract, in that he did the work hut did not keep the water out of the cellar; that he Was to make a watertight cellar for the plaintiff, but never did ; that Lumbye, the sub-contractor, commenced the work about April 10, 1882, but that lie wrongfully and without defendant’s approval or consent abandoned the said work before the completion thereof and before the same was watertight and failed to make the same watertight, and the sub-contractor abandoned hia work and refused to make the same watertight as he agreed to do ; that he (plaintiff) never employed any one else, after. Lumbye left, to make the cellar watertight; that the contract with Lumbye was not completed by reason thereof. The plaintiff further testified that when he signed the contract in connection with the specifications he knew that the whole basement floor was to be perfectly watertight with concrete and warranted ; that the object and purpose of that was to prevent the water from getting into the cellar ;. that the subcontractor wanted to do it his way and not the way the wprlc was to1 be done according to the plans and specifications; that he did it his way and the result was that the water came in, “ and that is what raised -trouble.” The witness further testified that the architect did not express his disapproval of the way his sub-contractor was constructing this cellar floor .; that he never said anything against it, but that after it had burst he expressed his disapproval; that plaintiff either gave the specifications under which the work was to be done to the sub-contractor, or read them to him, before he entered into the contract, and that he (plaintiff) expected the sub-contractor to carry out the contract that the plaintiff had made with the defendant, but that the sub-contractor-failed to do so. The plaintiff further testified that there was one side of the wall in front where there was a little sweating, where it dripped through on the bottom—-a place about as big as a man’s hand where it was damp; that the water oozed through, percolated through the wall on that one spot, through that one spot, and the witness built a wall around the cellar to hide that — three or four courses of brick to hide this spot — the whole length of the side of the cellar.

There can be no doubt from this testimony that Lumbye never did complete his contract with the plaintiff; that he never finished ' the work, but that before the -work was finished and the cellar floor was completed the water had burst through it, and that it was in this condition that the plaintiff left the work and refused the repeated demands of the architect to complete the cellar floor. It is true a floor was put upon the cellar by a sub-contractor of the plaintiff, but before that floor was completed the water had burst through and'substantially destroyed it. The plaintiff does not allege that, according to his construction of these plans, this cellar floor as laid by his contractor was in accordance with the plans. He says it was a better floor than that called for by the plans. Row, upon none- of these plans, or the specifications, is there any indication as to how this floor is to be constructed, except in the specifications, which provide that the whole of the basement floor is to be made perfectly watertight, with concrete or asphaltum, and must be warranted. ■ A cellar floor is delineated upon the plan, which was to be six inches thick, but the specifications distinctly called for, and this plaintiff promised to provide, a cellar floor which was to be made perfectly watertight, with concrete or asphaltum, and warranted. That by the specifications the plaintiff undertook this obligation, cannot, I think, be disputed. There is nothing that can fairly be said to contain any qualification of his obligation to furnish a cellar composed of concrete and asphaltum which would be watertight. The plaintiff was a builder, familiar with Work of this character. He nowhere testified that he.-understood from these plans that he would comply with this contract to furnish a waterproof floor by simply laying six inches of concrete; and I do not think that an inference can be drawn from the depth of this cellar floor upon this working plan which will override the express obligation imposed upon the builder by the specification that he would provide a watertight cellar floor. This is emphasized by the-provisions of the contract that “the specifications and the drawings are intended to co-operate, sq that any works exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if it.were mentioned in the specifications and set forth in the drawings, to the true meaning and intention of the said drawings and specifications, without any extra charge whatsoever.” Here was an -express obligation to furnish a waterproof cellar to -be constructed of concrete or asphaltum; and no inference to be drawn from the distance between two lines on a plan could relieve the plaintiff from the obligation to perform this express and explicit provision 'of the specifications which he understood, and upon which the defendant’s obligation was predicated.

It is not necessary to determine as to the rights of the parties in case the sub-contractor had completed his contract. Plaintiff testified that he- did. not do, and made no attempt to do, what the sub-contractor failed in doing. The plaintiff relies upon the case of MacKnight Flintic Stone Co. v. Mayor (160 N. Y. 81); but the question there presented was.a very different one from that presented in the case now under consideration. In that case the plans and specifications, with great exactness, detailed, the work that the contractor was to do, and the evidence showed that every requirement of the plans and specifications as to material furnished and work done had been literally complied with, and the question as there presented was, after calling attention to the form of the contract, thus stated by the court: “ If this means that the plaintiff agreed to make the boiler room watertight by following the plan and specifications,, even if it could not be done in that way, it agreed to perform an im.pos"sibility, as the jury might have found. If, on the other hand, the meaning is that it agreed to make the boiler room watertight by following.the plan and specifications, provided it could be done in that w;ay, it lias performed its contract, as we must assume for the purpose of this appeal.” Here neither the plans nor the specifications provided in detail for the method by which the plaintiff was. to build this cellar floor. Nothing prevented the plaintiff from making .a perfectly watertight floor in the cellar. The plan showed a cellar floor, and then by the specifications the plaintiff agreed that he would • construct such a cellar floor as-would be perfectly watertight, with -concrete or'asphaltum, to be laid on top with Portland cement. He had his option to build that in any way he pleased of. the material -named, so long as he made it a waterproof floor. He undertook to sublet this part of his contract, by which a sub-contractor agreed- to make the cellar floor which the plaintiff had agreed to make, in the following manner : Two inches of concrete, one layer of asphalt and pitch, and,-over that, four to five inches of concrete of Portland cement, sand and gravel. But, as before stated, before it was fin-islied the water burst through and substantially destroyed it. Upon what principle can it be said that the plaintiff complied with his obligation to construct a watertight cellar floor by making- a subcontractor provide such a- floor, which was never completed, the water bursting through before it was finished ? I think it clear that, upon his own testimony, the-plaintiff never completed his work according to his contract.

After the plaintiff had failed to complete the contract the owner, through the architect, gave to the plaintiff the notice, as provided for by the 4th article of the contract, that if thexplaintiff did not go ■on and complete his work, the work would-h.e- done by other parties and the expenses deducted from -the amount due to the .plaintiff. The 4th clause of the contract provides that “ Should the contractor, at any time during the progress of the said works, refuse or neglect to supply a sufficiency of materials or workmen, the. owner shall have power-to provide materials and .workmen, after three days’ notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract.” The effect of this provision of the contract and notice given under it was stated by the Court of Appeals on the' former appeal in this case (141 N. Y. 204) as rendering the provision for the architect’s certificate inapplicable. “ The owner does the work left undone by the contractor, and the contract provides how, in that- case, the expense shall be adjusted as between him and the contractor.” Thus, where the owner gives such a notice to the contractor lie takes upon himself the obligation to complete the work, and is justified in deducting from the amount due to the contractor the expense ■that he incurs in performing the contract according to its terms. The owner by stepping in, giving the notice and assuming to do the work, becomes bound to pay the contractor the contract price, less the amount that he was compelled to pay for doing the work as. required by the contract which the contractor has failed to do, and this furnished a just protection to -both parties. The contractor must have an opportunity to do the work according to the contract. If he fails, the owner can then, step in and assume the obligation to do the work, and charge to the contractor the amount of additional expense incurred. It is not necessary to determine what the rights of the parties are if the owner simply neglects or refuses to exercise this right given to him by the contract and simply calls upon the •contractor to complete his contract. In that case, until the contractor does so complete his contract, it is quite probable that he has no claim upon the owner for any further payments under it: but where the owner actually undertakes the completion of the work, and takes it out of the power of the contractor to perform it, he ■certainly should not be justified in refusing to pay the contract price less the amount that he has been compelled to expend to complete the contract The defendant proved that, after this notice to the plaintiff, he employed another contractor to make a new Cellar floor,, and that he paid him for his work the sum of $2,904.58. This, .bill was approved by the architect and was paid by the. defendant, and, after the work was completed, the cellar was watertight and remained so down to' the time of the trial.

I think that the defendant was entitled to deduct from the amount, due to the .plaintiff the necessary expense that he incurred in completing this cellar and making the floor watertight. ^

On: submitting the case to the jury the' learned trial judge charged as follows : “ It is true that in the specifications appeared the following: ‘The whole of the basement floor to be made perfectly watertight with concrete ’or asphaltum, and must be warranted, and the-■floor to. be laid on top in Portland Cement.’ How, that on its face is. a guaranty on the part of Weeks that he would construct a cellar-floor that would be absolutely watertight. But you must bear in •mind that the architect should have known what'kind of a floor was-needed. He is presumed to have known; and when lie-prepared a. plan which, called for a six-inch floor it was. equivalent to a representation to Mr. Weeks that a six-inch floor constructed of the -best material and best workmanship was • sufficient to make the floor-watertight. That was equivalent to a statement on the part of Mettam to Weeks : ‘ That if you put down a six-inch floor of the. best material and the best, workmanship, then I say to you that. that, is sufficient to make the floor watertight,’ and'then the contractor the guaranty on the part of Mr. Weeks was equivalent to. this :. ‘ If you undertake with me that a six-incli floor, constructed in that-manner, will be sufficient and watertight, then. I will guarantee to-put down a watertight floor six inches thick with the best material- and the best workmanship.’ So yon will see, in order to ascertain whether Mr. Weeks performed his contract, it is very essential to-ascertain the kind of floor the' contract called for. On the other hand, if this contract or the plans which are part of the-contract,, called for a foundation of two feet and then a floor on top of it, then the guaranty on the part of Mr. Weeks was this: That he-would put on a floor two feet thick and a floor that would in that case be watertight. . How, you arc..to • determine that question from, the evidence which has been produced before you and from the plan which they put in evidence, and it is for yon to say whether that contract called for a six-inch cellar floor or whether it calléd for one as claimed by the defendant.” To this charge counsel for the defendant excepted. I think this presented a false issue to the jury, as there was no evidence to sustain a finding that there was any warranty by the defendant, or his architect that a six-inch floor constructed in any way would make the cellar watertight.

I have before discussed the effect of these plans and specifications, and the' view that I take of the contract, considering the plans and specifications as apart of the contract, is, as before stated, that the plaintiff undertook to construct a waterproof cellar floor and was not relieved from this obligation because of anything that appeared upon these plans.

Without discussing the other questions presented in the case, it follows that the judgment must be reversed and anew trial ordered, with costs to the appellant to abide the event, unless the plaintiff consents to deduct from the amount of the verdict the sum of $2,804.38 and interest, thus reducing' the judgment as entered to' the sum of $10,422.12, in which case the judgment as .so reduced-must be affirmed, without costs of this appeal.

Patterson, Rumsey, McLaughlin and Hatch, JJ., concurred.

Judgment reversed, new trial ordered, with costs to appellant to abide event, unless plaintiff shall consent to reduce the judgment as entered to the sum of $10,422.12, in which case judgment as so reduced affirmed; without costs of appeal.  