of $980, drawn by the defendant, Edward L. Beekman, on the defendant, Spencer Aldrich, and directing said Aldrich to pay to plaintiff said sum out of the final payment on a certain building loan contract between said Beekman and Aldrich.
Said loan contract provided that none of the advances should be made “ if, when such advances become due according to the terms of this contract as above specified, there shall be any lien or incumbrance upon said premises other than the said mortgages held by the Brooklyn Trust Company, the mortgage to the party hereto of the first part {Aldrich) ” and certain mortgages which were to be subordinate to the building loan. It was also agreed that the advances were to be made only on the certificate of one Owen that the work had been completed.
The buildings were substantially completed on November 1, except certain hasps which were supplied on the 10th., and on November 14th. the certificate of completion was obtained.
On the 17th day of November, 1891, the defendant Beekman made a demand upon the defendant Aldrich for his final payment, and Aldrich refused to pay the same, whereupon the attorney for the defendant Beekman asked the defendant Aldrich for a certificate stating his reasons for not paying the final payment, whereupon the defendant Aldrich certified under his hand that his objection to paying the certificate was, that from the same should be deducted certain interest and taxes, and a further objection that five lis pendens had been filed to foreclose a mortgage, but no objection whatever was raised by said Aldrich that said buildings had not been finished and completed in every particular at said time said taxes had been levied during said month of November.
Philips & Avery, for resp’t; Spencer Aldrich (Geo. Putnam Smith, of counsel), for app’lt.
A careful examination of the case discloses no error requiring reversal. There was no lien or incumbrance other than the mortgages referred to in the agreement of June, 1891, upon the premises in question at the time the buildings were substantially finished. The taxes became a lien at a time subsequent to the completion. True, they were so prior to the receipt of Owen's certificate, but the agreement read “ that none of the above advances shall be made if, when such advance becomes due according to the terms of this contract as above specified, there shall be any lien, etc.,” and the terms referred to as above specified made no reference to the time of the receipt of the certificate, but read that the payment should be “ when the said five buildings are in all other respects completely finished.”
The referee has found upon conflicting evidence that the buildings were substantially completed November 1, 1891, and of this the appellant complains. Upon the whole case we are disinclined to disturb the finding, though the question with respect to it is one not free from doubt.
Judgment affirmed, with costs.
Sedwick, Ch. J., Dugro and Gildersleeve, JJ., concur.