
    Richard Highton et al., Resp’ts, v. Simon Dessau, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Mechanic’s lien—Evidence.
    On foreclosure of a mechanic’s lien for mason work, expert evidence to-show that such work does not include plastering and whitewashing is. admissible.
    3. Same—Performance.
    Where it is impossible to perform part of the work until certain work of other contractors is finished, and upon the completion of such other work plaintiff goes prepared to do his work, but finds others engaged in doing it and is ordered ofE the premises by the owner, there is a substantial performance and plaintiff is entitled to recover.
    3. Same.
    Substantial performance is sufficient although a small and unimportant, portion remains to be done, and if completion of the work is prevented by the acts of the owner, the contractor is entitled to recover.
    
      
      4. Same — Architect’s certificate.
    Where the architect unreasonably refuses to give a certificate it is not a condition precedent, but a recovery may be had notwithstanding.
    8. Same—Judgment.
    Although a bond was given to secure the lien, the judgment should be entered against the property.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiffs.
    
      Leon Lewin, for app’lt; William Irwin, for resp’ts.
   Bookstaver, J.

This action was brought to foreclose a mechanic’s lien. The first question to be considered on this appeal is the one raised by respondent’s counsel as to what was denied in the answer. From a careful examination of the pleadings we are convinced he is wrong in supposing that the second paragraph of the answer, which contains a denial of the fifth and ‘sixth allegations of the complaint, was intended to refer to distinct allegations in the various paragraphs of the complaint, but we think the denial was intended to, and did refer to the paragraphs themselves as numbered and marked therein. So that whether or not the respondents had duly performed the work to be done by them, and whether they had, o.r had not, completed the contract alleged in the complaint so as to become entitled to the fourth payment thereunder, and whether or not they had properly filed their liens, were issues to be tried. But we think the referee was fully justified from the evidence offered in this case in finding as he did in favor of respondents on these issues.

The two principal points raised by the defense were, that the respondents were obliged under their contract to do plastering and whitewashing, and, secondly, that they unreasonably refused to ■complete the elevator shaft, and that some of the work which respondent should have done was done by the appellant after serving notice on the respondents requiring them to do it.

In answer to this the respondents claim that under their con' tract they were not bound to do the plastering and whitewashing, and therefore did not do it. In order to show this they produced, as they had the right to do, Cassidy v. Fontham, 38 St. Rep., 177, witnesses, experts in the trade,'to show that mason work did not include plastering and whitewashing, and this^ testimony ^ the appellant did not satisfactorily overcome. Besides, we think, the contract itself shows that whitewashing and plastering was not intended to be included therein, because the seventh paragraph of the contract states that “ the parties of tile second part agree to keep all the sand required for the mason work and plaster on the premises,” thus making a clear distinction between the two. It follows, therefore, that the notice served upon the plaintiffs in regard to doing this work was of no consequence, as they were not bound to do it in any event.

As to the second contention, that the respondents unreasonably refused to complete the elevator shaft after notice, we think the referee also was correct. From the testimony it is very clear that some two or three weeks before it was possible to lay this fire-proof brick in the elevator shaft, the respondents had hoisted thé brick from the ground floor and placed it in position on the several floors of the building ready for laying when the shaft was ready for the work. It was not possible to lay these brick until the skeleton of the shaft, which was .composed of iron and was being erected by other contractors, was in place; and this iron could not be set up until the brick foundation of the shaft was completed. It appears by the testimony of several witnesses, and as far as we have been able to see was not contradicted by appellant, that the iron work of the elevator shaft, which had to be set in place, was not completed until the 24th of April, 1890. There is a good deal of conflict as to when the notice-was served, if at all; the appellant’s witness at first stating that it was on the 20th of April, but when it appeared that that was-on a Sunday, stated that it w'as afterwards. The respondents’ contention is that the notice was not served at all, and also that, on the 25th day of April, they, or one of them, went to make arrangements for the work, saw Mr. Schneider, one of the appellant’s architects, who promised to mail him a sketch of the-shaft that evening, as the original design had been changed; but this he did not do.

On the morning of the 26th of April respondents went to the-building prepared to do their work, when they found that the appellant had put other men at it and ordered them off. Even if the notice was served at all, it cannot avail the appellant, as it. was served when it was impossible to proceed with the work,, and the respondents used all diligence in going on with the work after it was possible to do so.

There was a good deal of dispute as to what was contained in the specifications, which were referred to in the contract, but it is. admitted that none were signed by either party, and the respondents swore that the specifications they saw they got from the architect, and they contained the whole work of-the building, and that, they were directed to estimate only on the mason work. In this they are to some extent confirmed by the appellant himself and the witness William Shefton.

According to the terms of the contract the fourth payment was to be made when the mason work was completed ; consequently the only question in this case was' whether or not this work was completed at the time the fourth payment was demanded and refused. As before shown, the mason work required by the contract was all done as far as the appellant permitted the respondents to do so, and we think the respondents were entitled to the-full amount of that payment.

There were several small amounts in the bill of particulars concerning the cleaning of the cellar and removing of dirt, etc., therefrom. It may be quite possible that all of this work was-not done by the respondents whemthey claimed the fourth payment, but as there was to be a fifth and final payment thirty days-after the completion of the building, it is in our judgment immaterial whether or not this rubbish was removed, at the time, as-they had ample opportunity to do so afterwards, and there is no proof but that they would have done it had the payment been made. Substantial performance is sufficient although a-small and unimportant portion remained undone, Flaherty v. Miner, 33 St. Rep., 683; Hollister v. Mott, 32 id., 743, and if the respondents were prevented by the acts of the appellant from the completion of the work, they were entitled to recover the full amount of the fourth payment Stewart v. Keteltas, 36 N. Y., 388; Jenks v. Robertson, 58 id., 621; Leslie v. Knickerbocker L. Ins. Co., 63 id., 27; Kingsley v. City of Brooklyn, 78 id., 200.

The item of $7.75 for a coal chute, and the other claims made by appellant, were properly disallowed, as the contract did not call for the respondents’ making them.

Appellant also claims that the judgment should be reversed because the respondents did not procure the architect’s certificate, as required by the contract; but from the evidence it appears that the architect refused to give the certificate because the plastering had not been done, and for this reason only, and, as before shown, the respondents were not bound to do this. Therefore it was improperly withheld, and where an architect’s certificate is demanded and unreasonably refused, it is not a condition precedent, but there can be a recovery notwithstanding. Thomas v. Fleury, 26 N. Y., 33-34; Bowery Natl Bk. v. Mayor, 63 id., 339; Nolan v. Whitney, 88 id., 650; Smith v. Alker, 102 id., 90; Doll v. Noble, 116 id., 232-233; 26 St. Rep., 629; Flaherty v. Miner, 33 id., 684; Thomas v. Stewart, 43 id., 881.

Although a bond was given to secure respondents’ lien, the judgment was correctly entered as against the property, and is the only form in which one can be entered under the mechanics’ lien act. Copley v. Hay, 34 St. Rep., 771.

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

Bischoff and Pryor, JJ., concur.  