Opinion
February, 1906.
Marks Marks, for appellants.
Feltenstein Rosenstein, for respondents.
The first cause of action was properly dismissed. There was no proof of waiver of the architect's certificate, and the architect, who was called as plaintiffs' witness, testified that the work was not completed, indicating numerous defects and deficiencies in the work. There was, therefore, affirmative proof of nonperformance and there was no evidence tending to establish an unreasonable refusal on the part of the architect to furnish his certificate.
A different situation, however, exists with respect to the second cause of action. The court excluded testimony preferred by plaintiffs, tending to establish the installation of washtubs for defendants, upon the ground that the written contract between the parties for the bathtubs, basins and sinks provided that no work should be considered as extra unless ordered in writing or accepted on a written estimate.
Aside from the fact that the putting in of washtubs would not necessarily be construed as extra work within the contemplation of the parties, it is well settled that a provision that orders for extra work shall be in writing may be waived. Abells v. City of Syracuse, 7 A.D. 501; Weisbrod v. Dembosky, 25 Misc. 485; Porter v. Swan, 17 N.Y.S. 351.
It was error to exclude the proofs offered in support of the second cause of action.
The judgment should be affirmed as to the first cause of action and reversed as to the second cause of action and a new trial ordered in respect thereto, without costs to either party.
SCOTT and GIEGERICH, JJ., concur.
Judgment affirmed as to first cause of action and reversed as to second cause of action and new trial ordered in respect thereto, without costs to either party.