Strom v. Dongan — 64 N.Y.S. 57

Majority

p. 57

STROM v. DONGAN.

(Supreme Court, Appellate Term.

April 16, 1900.)

Headnote

Building Contracts—Construction Permit—Installments—Conditions.

Where a building contract required the contractor to obtain a permit from the building department of the city for the construction of the building, he was not entitled to the payment for the first installment under the contract until he had filed plans reasonably free from objections and acceptable to such department, since the filing of the plans was a prerequisite to a permit to construct the building.

Appeal from municipal court, borough of Manhattan, Tenth district.

Action by William Strom against Herbert Dongan to recover an installment on a building contract. Prom a judgment dismissing the complaint, plaintiff appeals.

Affirmed.

Argued before BEEKMAN, P. J., and GIEGERIOH and O’GORMAN, JJ.

Butler, Potman, Joline & Mynderse, for appellant.

Rose & Putzel, for respondent.

We think that the proper construction of the written contract between the parties called for the filing with the building department of plans which were reasonably free from objection and acceptable to the department. It will be observed that the plaintiff was bound by the very terms of the contract to obtain from the department a permit for the construction of the building. This it is apparent he could not do unless the plans for construction were acceptable; so that there is internal evidence, within the four corners of the written agreement, which, disregarding the oral evidence that was admitted upon the subject, supports the construction which the court below has adopted. As the plaintiff has not as yet complied with the condition, as we construe the agreement, upon which his right to the first installment of his compensation depends, it follows that the judgment dismissing his complaint must be affirmed. Judgment affirmed, with costs.