Feldman v. Goldblatt

75 Misc. 656, 133 N.Y.S. 945

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1912
• Status: Published

Opinion

Guy, J.

The plaintiff sues to recover the value of carpenter work- alleged to have been performed by him under a written contract with defendant. The complaint was dismissed, apparently, because no architect’s, certificate was furnished. Plaintiff alleged that the requirement of the contract that an architect’s certificate he furnished before each ‘ payment was waived. The architect testified that he gave no certificate because his work was finished when he drew the plans and specifications; that he refused to supervise the work; that he never examined it; that he could not issue a certificate - without going to the job and unless he was paid for doing so; and that he would not do it, because it was a small job and he did not care to look after a lot of small contractors he knew nothing about. The agreement contemplated that defendants should employ an architect, whose duty it would he to pass upon the question whether the work was performed according to contract. When an owner fails to employ such architect, the contractor is not obliged tó furnish a certificate. Thomas v. Fleury, 26 N. Y. 26-34; Haden v. Coleman, 73 id. 567, 570.

Seabury and Bijur, JJ., concur.

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