Opinion
December 2, 1908.
H.H. Snedeker, for the appellants.
Charles W. Church, Jr., for the respondent.
The contract in this case provided that the building should be well and sufficiently erected and finished agreeably to the drawings and specifications made and signed by the parties, and thereto annexed, within the time specified therein in a good workmanlike and substantial manner to the satisfaction and under the direction of James D. Fox, to be testified by a writing or certificate under the hand of James D. Fox. It does not appear that any writing or certificate under the hand of James D. Fox was ever obtained by the plaintiff, and we fail to find either allegation in the complaint or testimony on the trial that the same was unreasonably withheld. It seems to us that such a certificate was a condition precedent under the contract. The learned counsel for the respondent contends that the original contract was made with the defendant Annie Fox before title to the premises had been taken, and that thereafter the title was taken in the name of both defendants, and the alterations and changes were made by both defendants, so that the provision as to the certificate became unnecessary. But the contract was made with Annie Fox, and the question is not as to the alterations and the changes made, but as to whether the work was done in a good workmanlike and substantial manner. The mere fact that James D. Fox subsequently became one of the owners of the property did not dispense with the requirement of the contract as to his certificate as superintendent or overseer of the work.
The point is also made that the defendants in this action did not base the refusal to make payments under the contract upon the failure to produce this certificate, and we are cited to Tilden v. Buffalo Office Building Co. ( 27 App. Div. 510). But that case does not go so far as the learned counsel for the respondent contends, because it deals not with the omission of the certificate, but with the proper form thereof.
The judgment must be reversed and a new trial be granted, with costs to abide the final award of costs.
WOODWARD, JENKS, GAYNOR, RICH and MILLER, JJ., concurred.
Judgment and order reversed on questions of fact and of law, and new trial granted, costs to abide the final award of costs.