Gibbons v. Russell — 37 N.Y. St. Rep. 402

Majority

p. 402

Michael Gibbons et al., Resp’ts, v. Thomas Russell, App’lt.

(City Court of Brooklyn, General Term,

Filed March 23, 1891.)

Headnote

1. Contract—Architect’s certificate.

In an action to recover for work done under a building contract the plaintiff testified that the work was completed and that he applied to the architect for a certificate; that he found no fault with the work, hut referred to some damage by water, and advised that defendant be seen about, it and said that defendant was a crank, and that he did not like to give a certificate until defendant was satisfied. Held, that on this testimony it was proper to submit to the j.:ry the question whether the certificate was unreasonably withheld.

2. Same—Substantial performance—Trial.

Where the evidence as to substantial performance of the contract is conflicting, the question is peculiarly one for the jury, and a denial of motions to dismiss and for direction of a verdict is proper.

3. Same—Evidence.

A question put to defendant as to whether he made any work or attempted to have anything done that was not a remedying of the defects specified by him, is improper, as calling for a conclusion.

Appeal from judgment in favor of plaintiffs entered on verdict and from order denying motion for a new trial. Action to recover a balance claimed to be due on a building contract. Defendant counterclaimed for damages caused by the negligent conduct of the work and because portions were left undone which defendant was obliged to have completed. On the trial he testified to various defects in the work, and was then asked by his counsel, “ Did yon make any work, or attempt to have, anything done that was not a remedying of the defects and injuries that you have testified to ?” This question was excluded by the court as calling for a conclusion.

George W. Pearsall, for resp’ts; Theodore F. Miller, for app’lt.

On or about April 13th, 1889, plaintiff entered into a contract with defendant for putting an extra story on his house, at Ho. 303 President street, in this city, for the sum of $2,000, according to certain specifications; the contract provided that the work was to be done to the satisfaction and under the direction of the architect, one Covert, to be testified by a writing or certificate under his hand. Plaintiffs brought this action to recover a balance of $970, alleged to be due on said contract, and also a further sum of $50.50 for extra work; in all, $1,020.50.

The claim for extra work was not disputed by defendant; as to the balance alleged to be due on the contract, defendant claimed that the work was done improperly, and not according to the specifications ; that it was not done to the satisfaction of the architect, who has refused to give a certificate to that effect, and that he has suffered damages by the negligent conduct of the work, to the amount of $500, and has been compelled to expend five hundred and thirteen dollars 53-100, to complete the work as contracted for which amounts he counterclaimed. >

On the trial plaintiffs had a verdict for $770, and from the judgment entered thereon, and from an order denying a motion for a new trial, this appeal is taken.

At the close of the plaintiff’s case, the learned counsel for the appellant moved to dismiss the complaint, on the ground that the architect’s certificate had not been given, and that it had not been shown that it had been unreasonably withheld, which motion was denied, and the refusal excepted to.

We do not think this exception was well taken. One of the plaintiffs testified that the work called for by the contract had been completed; that he applied to the architect, Covert, for a certificate to that effect; that Covert made no complaint about the manner in which the work had been done; he referred to some damage done by water, and advised plaintiff to see defendant and fix the matter up, adding that “ he (Russell) is a little cranky, and I don’t like to give a certificate; that he did not like to give a certificate until Mr. Russell was satisfied; that he was a crank, and ought to settle with us; that he did not know the reason why.”

We think, on this testimony, that it was proper to submit to the jury the question whether the architect’s certificate had been unreasonably withheld. If the contract had been completed, as plaintiff testified, it was the duty of the architect to furnish the certificate, and a refusal on his part so to do was unreasonable. Bowery Nat. Bank v. Mayor, etc., 63 N. Y., 337 .

The testimony on the part of the defendant sought to show that _ the work was improperly and negligently done, thereby causing him damage, and that, in several particulars, the work was not finished as required by the contract and specifications. These matters were disputed by the rebutting testimonv on the part of the plaintiff, and the issue was accordingly made as to whether the contract liad been substantially performed. This was peculiarly a question for the jury to determine, and we are therefore of the opinion that the motion to dismiss and the motion for

p. 404

direction of a verdict for defendant at the close of the testimony were properly denied. Nolan v. Whitney, 88 N. Y., 648 .

The learned counsel for the appellant also contends that the verdict was contrary to the weight of evidence. We have carefully gone over all'the evidence, and are unable to agree with him in his contention. While it is true that there are some sharp contradictions, we can see no valid ground for interfering with the verdict; that the jury were not carried away by passion or prejudice, and that they duly considered the evidence on the part of the defendant is plainly indicated by the reduction of $250 which they made on plaintiff’s claim. We think substantial justice was done between the parties.

, The exception to the exclusion of the question put to the defendant is not tenable, for the reason that it called for a conclusion of the witness, and constituted him, instead of the jury,'the judge of what were “ defects and injuries,” and what was necessary to be done to remedy them.

The judgment and order appealed from should be affirmed, with costs.

Clement, Ch. ¿T., concurs.