Diehl v. Schmalacker

26 Misc. 835, 57 N.Y.S. 244

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1899
• Status: Published

Opinion

MacLean, J.

In an action brought “ for balance on contract,,s wherein the defendant pleaded a general denial, a breach of the contract and a failure to obtain the certificate required therein, the plaintiff introduced in evidence the contract, which was under seal, and whereby he undertook to “ well and sufficiently erect and finish three new buildings agreeably to the drawings and specifications made by Michael J. Garvin, and signed by the said parties and hereunto annexed, within the time aforesaid, in si good, workmanlike and substantial manner, to the satisfaction and under the direction of the said architect, to be testified by a writing or certificate under the hand of said architect.” No-certificate of any sort by the architect was produced, nor was evidence given to show that it had been applied for and refused for any reason, bad or good, or that its nonproduction had been excused or waived by the defendant. As production of such a certificate was a condition precedent to recovery, the motion made to dismiss the complaint when the plaintiff rested, should have been granted instead of denied. The same is true of the similar motion made at the conclusion of the taking of testimony, where,, too, the defendant had given evidence of several breaches of his contract by the plaintiff. The other objections contended for by the defendant do not now need discussion.

"The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Freedman, P. J., and Leventritt, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.