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H. P. Sickles Co. v. McCurdy & Norwell Co.

151 N.Y.S. 906 Court N.Y. App. Div. Decision date 1915-03-03 Docket No. 90-65 English

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p. 906
H. P. SICKLES CO. v. McCURDY & NORWELL CO.
(No. 90-65.)
(Supreme Court, Appellate Division, Fourth Department
March 3, 1915.)

Headnote

Contbacts (§ 323[1] ) — Certifícate of Architect — Question fob Jury.
Whether the architect’s certificate, delivered to the owner, was a final certificate under a building contract, or only, a memorandum, held, under the evidence, for the jury.
[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1311, 1349, 1466, 1543-1548, 1827, 1827% ; Dec. Dig. § 323.*]
Appeal from Trial Term, Monroe County.
Action by the H. P. Sickles Company against the McCurdy & Norwell Company. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals.
Reversed, and new trial ordered.
Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.
Samuel M. Havens, of Rochester, for appellant.
J. M. E. O’Grady, of Rochester, for respondent.

The building was not in fact completed at the time the paper was delivered, and, as the evidence tends to show, neither the architect nor the parties to the contract themselves regarded the work covered by the contract as completed. The other certificates had been given to the plaintiff contractor, and according to the testimony of the architect it was usual to give certificates of this character to the contractor, and not to the owner. Mr. McCurdy, the president of the defendant, testifies that the paper was made at his request for the specific purpose of delivering it to the bank as a memorandum of the amount of money which had been paid on the building, and for no other purpose. We are of the opinion that it was a question of fact as

p. 907
to whether the paper delivered by the architect to the owner was a final certificate -within the meaning of 'the contract, or a mere memorandum as claimed by the defendant.

The judgment and order should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.