
    Nathan L. Strauss, Plaintiff, v. Hanover Realty and Construction Company and The Bankers' Surety Company, Appellants, Impleaded with John J. Dowling, Respondent, and Henry Ahr Iron Works and Others, Defendants.
    First Department,
    July 13, 1909.
    Contract—building contract --- when letter from architect not equivalent to,certificate— approval by tenement house department.
    Where a building contract provided that no certificate of the architect or payment made under the contract “ except the final certificate or final payment ” should be conclusive evidence of performance, either in whole or in part, letters written by the architect to a plumbing contractor asking him to replace certain water valves and stating that the contractor had done all that was requested except in connection with certain vents in the roof, are not equivalent to a final certificate of the completion of the work according to contract so as to entitle the contractor to foreclose a mechanic’s lien:
    Although such contract provided that the final payment should he due when water was turned on and the work accepted by the architects and approved by the tenement house department of the city, a certificate of approval by the building department is not proof of due performance by the contractor so as to entitle him to recover.
    Appeal by the defendants, the Hanover Realty and Construction Company and another, from a judgment of the Supreme Court in favor of the defendant John J. Dowling, entered in the office of the clerk of the county of Hew York on the 17th day of Hovem•ber, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Frederick E. Anderson, for the appellants.
    
      J. Power Donellan, for the respondent.
   Houghton, J. :

The action was brought to foreclose a mechanic’s lien upon premises in the city of Hew York owned by the defendant Hanover Realty and Construction Company. • The respondent Dowling had the contract for the plumbing work in the various houses being erected thereon, and filed a lien for the balance due by the terms of his contract which he claimed to have fully performed. The appellant settled with all the other lienors and contested Dowling’s claim on the ground that he had failed to perform his contract.

The contract with him provided that no certificate of the architect or payment made under the contract except the final certificate or final payment, shall be conclusive evidence of the performance of this contract either wholly or in part.” When the plumbing work was about done, and when Dowling was claiming that his contract was practically completed, the supervising architect wrote him two letters. The first was dated December 27, 1906, and was as follows: There is one more item I wish to call your attention to, that is, the two main Croton valves to house jf 131-133 Sherman Ave. do not set down tight as water gradually gets in past the valve and would suggest that you place in two new valves in place of the old ones. When your men go up there to do this see that they bring along about one doz. of different size washers and give them to the janitor there. Please inform me at once when you have this done.” The other letter was dated January 14,1907, and read : Replying to your inquiry as to the plumbing work at the Sherman Ave. houses on my last investigation found that you have done all that I requested except that the connections to the refrigerator vent above roofs, which will be a question to be determined between the roofer and yourself, who should pay for the damage to the ceilings and walls by water leaking through the roof.” Various payments had been made on account of the contract and no certificate- of the architect had been required on their being made. The contract provided that the final payment should be due “ when water is turned on and work accepted by architect and approved by the Tenement House & Building Departments,” and respondent Dowling introduced in evidence over the appellants’ .objection a certificate of 'an inspector of the building department of the borough of Manhattan to the effect that he had examined the premises and had found them to conform, in all respects to the approved plans and specifications and the rules and regulations of the bureau of buildings for the borough of Manhattan'. Request for such an examination of some of the houses- -at least and for a certificate had been made by the owner. .

The learned trial court held that the two letters of the architect above quoted were in effect a final certificate of completion of the work according to contract, and that taking them in connection with the certificate of the building department, obtained in fact or presumably by the owner, they together constituted conclusive evidence that Dowling had fully performed his contract, or at least estopped the owner from saying that he had not so performed. Entertaining this view the court refused to permit the owner to introduce evidence showing lack of performance either in workmanship or material.’

W e are of the opinion that the two letters written by the architect to the contractor did not constitute a final certificate within the meaning of the contract. They, do not purport tobe certificates. It is true they only point out some minor omission or defect and state that it has been remedied, but in no sense do they indicate that a final and thorough examination of the work had been made and found satisfactory and according to the terms of the contract.

We are also of the opinion'that the learned trial court gave undue . weight to the certificate of the building department. The contract provided that such a certificate of approval should be given before the contractor was entitled to his final payment. Its only probative force, however, was that the contract had been performed in such a way that the building was safe and healthful. The certificate did not purport to and could not determine that the contractor had used such materials as his contract with the owner called for and that the work had been done in the manner agreed.

Dowling gave evidence that the contract was fully completed and that the owner accepted it as such and did not make payment because of lack of funds. However this may be, the decision was not on the merits upon the issue'of performance, for the owner appellant was not permitted to develop its proof in this respect. Because of the refusal to allow such proof a new trial must be directed.

The judgment is reversed and a new trial granted, with costs to the appellants to abide the event.

Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  