Opinion
January 27, 1986
Appeal from the Supreme Court, Suffolk County (Orgera, J.).
Judgment modified, on the law and the facts, by deleting the provision dismissing the third cause of action and by substituting therefor a provision awarding plaintiff the principal sum of $2,625 on that cause of action. As so modified, judgment affirmed, without costs or disbursements, and matter remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment.
It was properly determined by the trial court that plaintiff was entitled to be paid by defendant for three concrete fire cisterns as installed, inasmuch as it is undisputed that plaintiff did install them. While the installation of the fire cisterns was rejected by the fire department having jurisdiction on the basis that they were concrete and not fiberglass, the oral agreement between the parties did not make approval of the fire department a condition precedent for payment (see, Continental Ins. Co. v Albany Hous. Auth., 85 A.D.2d 782; Public Improvements v Parker Constr. Corp., 59 A.D.2d 671; cf. Macchia v Liggett, 67 A.D.2d 905). Further, the trial court properly refused to construe the parties' agreement as being conditioned upon an implied duty to obtain such fire department approval (see, Rowe v Great Atl. Pac. Tea Co., 46 N.Y.2d 62, 69; Colonial Roofing Corp. v John Mee, Inc., 105 Misc.2d 140, 147). Moreover, the Code of the Town of East Hampton, including "Standard Sheet No. 3", allowed the installation of concrete fire cisterns and did not delegate to the fire department the right to vary such code requirements. In any event, the granting of such a right would have been an improper delegation of legislative authority.
Moreover, plaintiff established and defendant concedes that it properly performed as to its third cause of action to the extent of $2,625 and that the parties' written agreement clearly establishes that each step of the contract was separate and that the parties could terminate the contract upon completion of any of the various steps (see, Matter of Wilson, 50 N.Y.2d 59, 65; Rhine v New York Life Ins. Co., 248 App. Div. 120, 135, affd 273 N.Y. 1).
Therefore, plaintiff is awarded an additional principal sum of $2,625. Lazer, J.P., Gibbons, Bracken and Niehoff, JJ., concur.