Van Keuren v. Miller — 54 N.Y. St. Rep. 229

Majority

p. 229

Augustus Van Keuren et al., Resp’ts, v. William Starr Miller, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Contract—Architect’s certificate.

Plaintiffs and their assignors performed work under building contracts with defendant, by terms of which the bills were to be paid on the fifteenth of each month, provided they were accompanied by the architect’s certificate. The certificate for the October work was obtained, but the architects refused, without a valid reason, and on the request of defendant, to give certificates for the November work. Defendant paid to plaintiffs less than the October bills, and the work was suspended. Held, that the bills became due the same as if a certificate had been issued, and that plaintiffs were entitled to recover the balance remaining after application of the payment upon the bills for the two months.

Appeal from judgment in favor of plaintiffs, entered upon the decision of the court on a trial without a jury.

Esselstyn & McCarty, for app’lt; A. Lee Wager, for resp’ts.

This is an appeal from á judgment in favor of the plaintiffs against the defendant.

The action was for the recovery for work and labor furnished to the defendant in the construction of a large stone mansion at Ehinebeck, in Dutchess county, in pursuance of a written contract

The action was tried before a judge of this court and decided against the defendant, and from the judgment entered on such decision the defendant has appealed.

The trial judge found and decided the following facts: On the 8th day of July, 1892, Augustus Van Keuren, one of the plaintiffs

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in this action, and the defendant entered into a contract in writing, whereby Yan Keuren agreed to do all the labor in connection with the mason work and plastering upon the erection of the residence of the defendant, already mentioned.

According to the terms of the contract, the labor was to be done by the day. Oarrere & Hastings were the architects of the building, and were intrusted by the defendant with the full charge and supervision of the work.

Ackert & Brown did the carpenter work upon the mansion, and they supervised the progress of the mason work, according to the written agreement between Yan Keuren and the defendant.

The work was begun about the 1st of August, 1892, and continued uninterruptedly until the month of December, 1892.

On or before the 5th day of each month, all the bills for labor and .services rendered and expenses incurred during the preceding month were presented to the architects for certification and all such bills became due and payable on the fifteenth day of the month succeeding that in which they were incurred.

The defendant agreed to pay such bills on or before the fifteenth day of the month in which they were presented, provided the bills were accompanied by the certificate of the architect that the payment was due.

On the 8th day of September, 1892, with the written consent of the architect, the plaintiff, Augustus Yan Keuren, assigned an equal one-half interest in the work to be performed according to the terms of the agreement to Egbert M. Haines, one of the plaintiffs, who thereupon became an equal copartner with said Yan Keuren, and thereafter the work was conducted by the firm of Yan Keuren & Haines, the plaintiffs in this action.

During the month of October, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to defendant, to the amount of $11,797.76. During the month of Hovember, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to the defendant, to the amount of $5,129.50.

During the month of October, 1892, Rider & Haines performed work for the defendant at Rhinebeck in carting stone, lime, brick, cement and general materials used in the building of the mansion of the defendant as specified in the agreement, of the value of $1,957.35, which the defendant agreed to pay on or before the 15th day of Hovember, 1892.

During the month of Hovember,1 1892, Rider & Haines performed labor and services for the defendant at Rhinebeck, consisting of carting stone, lime, brick, cement and general materials used in the building of the mansion of the defendant, as specified in the agreement, of the value of $888.79, for which the defendant agreed to pay on or before the 15th day of December, 1892.

All bills for work, labor and services and freight, furnished by the plaintiffs and Rider & Haines during the month of October, 1892, were presented to the architects for their certification on or before the 5th day of Hovember, 1892, and the architects

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issued their certificate to the effect that the payment of the bills was due, and that all of such bills for October became due and payable on the 15th day of November.

All the bills for work, labor and services and freight, furnished to defendant by the plaintiffs and Eider & Haines during the month of November, 1892, were presented to the architects on or before the 5th day of December, 1892, and repeated demands were thereafter made upon the architects that they issue their certificate that the payment of the November bills was due.

The architects refused or neglected' to issue a certificate for the November bills, and they were requested and directed by the said defendant not to issue a certificate for November, 1892.

No legal or valid reason for the refusal to issue such certificate was shown upon the trial of this action, and the architects have failed to justify such refusal.

All of the bills of November, 1892, became due and payable on the 15th day of December, 1892, the same as if certificates thereof had been issued by the architects.

Prior to the commencement of this action Eider & Haines assigned and transferred to the plaintiffs herein their claim against the defendant for work and labor rendered during the months of October and November, 1892, amounting to $2,846.14, with interest from the time their claims became due, and the plaintiffs are now the owners and holders thereof.

All the work, labor and services furnished and performed by the plaintiffs and Eider & Haines was furnished and performed under the direction and supervision of the architects and Ackert & Brown, the carpenters doing the work, and such work, during its progress, was approved by the architects from week to week, and by the said architects inspected at least three times a week during the progress thereof.

The plaintiffs’ commissions for their general services in connection with the work as called for under the said written contract, viz.: ten per cent, on the cost of all labor and material furnished for the mason work, is not included in the plaintiffs’ claim in this action.

The plaintiffs and Eider & Haines faithfully kept and performed the covenants and agreements to be kept and performed pn their part, and the defendant failed to keep and perform the covenants and agreements to be kept and performed on his part, by neglecting and failing to pay the bills due for October and November, 1892.

On the 2d of December, 1892, the defendant paid to the plaintiffs, on account of such work, the sum of $10,000, and no other payments have been made thereon.

The judge found and decided, as conclusion of law, that the defendant is indebted to the plaintiffs in the sum of $9,773.40, with interest on $3,771.31, from November 15, 1892, and with interest ■on $6,002.09 from December 15, 1892, said interest amounting to $176.29, making together the sum of $9,949.69, for which last sum, with costs, the plaintiffs are entitled to recover judgment against the defendant, and judgment was directed accordingly.

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The facts so found are fully justified by the evidence, and there were no questions of law involved.

There is no merit in this appeal, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.