Opinion
June 5, 1908.
William F. Clare, for the plaintiffs.
Abraham Benedict, for the defendant.
The non-suit was proper. The plaintiffs have sued the wrong party. Horgan Slattery had no authority to change the plans and specifications, or order any work or material not embraced therein and in the contract ( Langley v. Rouss, 185 N.Y. 201). The statement in the brief for the plaintiffs that the carriage way had to be changed because it was found by test that a carriage could not go through it, and was changed only to that extent, has no foundation — if that could make any difference.
The exceptions to the sustaining of the defendant's objections to the questions of the witness Horgan, an officer of Horgan Slattery, whether he gave orders for work on the building on his own authority, and had been in the habit of doing so, and of another witness as to the custom of architects in that respect, must also be overruled. That he had assumed authority which he did not have was no matter; and there can be no lawful custom to break contracts. Proprietors who build houses are not the mere victims in law of architects and contractors.
If it be taken as true that the plaintiffs did not know of the provisions of the contract of defendant with Horgan Slattery, the case would not be changed. It was for them to find out what the authority of Horgan Slattery was. But the sub-contract of the plaintiffs with the contractor also contains a provision that no alteration should be made in the work shown on the plans and specifications "except upon a written order of the architects". The contract of the defendant with Reilly contained the same provision, and that no claim "based upon any alleged verbal agreement" should be made. The claim of the plaintiffs for the amount paid by them in wages over the regular rate for work done after regular hours, when such work was made necessary by their being behind with their contract, needs no comment.
The motion for a new trial should be denied.
WOODWARD, HOOKER, RICH and MILLER, JJ., concurred.
Motion for new trial denied, with costs.