
    JOHN PHELAN, Plaintiff v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Defendant.
    
      Contract, terms thereof as to time of performance, and certificate as to the time by commissioner of public works.
    
    When by the terms of a contract the computation of time as to delay, etc., is to be certified by the commissioner of public works, and it does not appear that he had refused to certify, no other method of settling the facts, which the contract provided should be determined by the commissioner, can be resorted to.
    In the case at bar, the court would have ignored the provisions of the contract, if it had allowed the jury to undertake the decision of a question which the parties agreed should be made by the commissioner of public works.
    Before Sedgwick, Ch. J., and Dugro, J.
    
      Decided March 5, 1889.
    Exceptions at tke trial ordered to be heard in the first instance at the general term, and judgment suspended in tke meantime.
    
      James A. Deering, attorney, and of counsel for plaintiff.
    
      Henry R. Beekman, counsel to the corporation, and David J. Dean, of counsel for defendant.
   By the Court.—Dugro, J.

The complaint contains two causes of action, one for $1,125, balance of contract price for grading 112th street. Another for $5,000 damages for delaying plaintiff and his assignor in the performance of the contract for the grading.

The defendant in its answer denies that the delay for which damages are claimed was caused by it, and says that it has a right to retain the $1,125 which plaintiff claims by reason of a clause contained in the contract and which is mentioned in the opinion.

The exceptions taken at the trial were ordered to be heard in the first instance at the general term, and judgment was suspended in the meanwhile.

In the case I find no exception to the granting of defendant’s motion for a verdict and therefore have not considered the question which would have been presented by such an exception; this statement is made because the appellant in his brief seems to rely not a little upon error which he claims occurred by the direction of a verdict for the defendant.

At the close of the case it appears the plaintiff asked that the case be allowed to go to the jury as to whether the delay in the performance of this work on the part of the plaintiff beyond the period specified in the contract (320 days), was not caused by the acts or negligence of the defendant in not removing the obstructions that were in the street and its failure to do so, so as to enable the plaintiff to complete the work within the time specified in the contract. And as to whether, if the street had been unobstructed when he was requested to commence work he could not have completed it.”

This motion was denied, and the plaintiff’s counsel excepted; the denial of this motion was not error, for the contract had been performed in all respects except as to time, and as to time of performance it was by the terms of the contract provided, that in-the computation of the time fixed for performance “ the total time..... during which the work of completing the contract is delayed in consequence of any act or omission of the parties of the first part (all of which shall be determined by said commissioner of public works, who shall certify to the same in writing).....shall be excluded.” It does not appear that the commissioner of public works refused to certify in writing to the time of any delay, and therefore the court would have ignored the provision of the contract above referred to if it had allowed the jury to undertake the decision of a question which the parties agreed should be made by the commissioner. Until there has been an unreasonable refusal on the part of the commissioner, no other method of settling facts, which it was agreed should be determined by him, can be resorted to.

As the case stands it is immaterial whether, if the street had been unobstructed, the plaintiff could have completed his contract in time or not.

The court was notin error when it granted the motion to dismiss the complaint as to the second cause of action ; the motion was made after the plaintiff had rested and up to that time no evidence to sustain the cause of action had been offered by the plaintiff.

The other questions in the case are unimportant.

The exceptions are overruled and judgment is ordered for the defendant upon the verdict, with costs.

Sedgwick, Ch. J., concurred.  