Hunt, J.
On the 4th day of May, 1853, the plaintiff and defendant entered into a contract, by which the plaintiff was employed to draw plans, sections, elevations, &c., and to superintend the progress of a new dwelling house which the defendant intended to build in the city of Mew York, and for which drawings and superintendence the defendant agreed to pay the plaintiff the sum of five hundred dollars, at the stages of the work in the agreement specified. The referee, before whom the case was tried, found in favor of
the plaintiff for the amount of his claim, and in substance, that he had faithfully performed the service agreed to be per-* formed on his part. Judgment was entered upon his report. On an appeal to the General Term of the Superior Court of the city of ISTew York, this judgment, it is recited in the order of reversal, was reversed upon questions of fact. The ^plaintiff appeals to this court from this judgment of the General Term.
Each party claims to be entitled to a judgment upon the facts as exhibited on the trial before the referee. The referee agreed with the plaintiff in his view of the case; while the General Term concurred in the defendant’s view.
The first question that arises here, is as to the extent to which this court' may examine the facts, and by what principles it is tó be governed in deciding upon them. The rule is furnished by section 272 of the Code as amended by chapter 459 of the Laws of 1860. “ If the judgment be reversed at the General Term, and a new trial ordered, it shall not be deemed to have been reversed on questions of fact unless so stated in the judgment of reversal; and in that case the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the Court of Appeals.” The whole case upon the facts is thus presented to this court for review, and this court is to determine “ whether the judgment should have, been reversed ” upon the questions of fact. The respondent seeks to limit this power of review by a reference to the opinion of Judge Comstock in
Hoyt
v.
Thompson's Executor
(19 N. Y., 207, 212). The remarks of the learned judge .in that .case are not applicable here. That case was decided and the opinion pronounced in June, 1859, while the section we are now construing was not passed until 1860. The previous statute gave no such power as was given by the amended Code of 1860. It seems clear that upon the present law, -the case is open to an examination of the facts here, and that wo are called upon to decide whether the judgment of the Superior Court, reversing the judgment below upon the facts, was correct.
•;' The' referee found that the plaintiff bestowed as much’ time as was necessary in superintending the building, arid that the variations from the plan were hot caused by carelessness, negligence or inattention on his part. If these facts’ existed, the plaintiff was entitled to recover. It is not certain that the General Term held that these facts did riot exist. They say: “It appears to us, upon the testi-•*' mony now presented in the case, that whatever may have' been the deserved and general reputation of the plaintiff, and however strong the evidence of his giving such supervision as is ordinarily bestowed by architects, there was a failure in one particular, which is sufficient to defeat his action for the balance of his compensation.” I ássume, however, that they mean to say, that he did not give that super-; vision to the building which his duty required, and will examine the case on that theory.
The principal defects alleged to exist in the building are, that the balcony in front, and the front parlor windows, were about two and three-quarter inches higher from the parlor floor than was shown on the plans, and the same distance higher from the floor than the back parlor windows. Thát this variation did exist in fact was proved on the trial and is not now disputed.
■ How was it caused ? The referee says that it arose from •the masons not having accurately conformed to the specification and plan, and this appears to be the proof!
Was the plaintiff responsible for this fault of the masons?'
■ The plaintiff agreed to make “ the plans, sections, elevations, specifications', and to superintend the progress ” of the building to be erected. It was not his duty to do the work. The agreement between the defendant and his masons provides that the masons “ shall well and sufficiently erect and finish ” the building in question, “ agreeably to drawings and specifications made by Frederick Petersen.” It was riot the' duty of the plaintiff to “ lay out ” the work, as it is technically termed. This, it was expressly provided, should be done by the mason, who agrees “ to lay out his work himself.”
The plaintiff was bound to furnish the plans, specifications,
sections and .elevations, and. the mason was bound to lay out the work. In other but perhaps not plainer words, the plaintiff was bound to put down, and to show on paper, how every part was to be built, and the mason was to stake it out, measure his lumber, and make actual measurements on the ground and in the erection for such building. I do not think it was the duty of the plaintiff to measure the joists or timbers of which the different stories were to be constructed, and to determine by actual measurement that the ceiling of the first story had an elevation of thirteen feet, and the second had an elevation of eleven feet, or to measure the thickness and depths of the brick or stone walls. He furnished instructions and information in writing on those points, and it was the duty of the mason or carpenter to furnish the materials, to see that they were of the proper dimensions, and to put them in their proper places.
The defendant, however, contends that the obligation of the plaintiff to
“
superintend the progress ” of the building, bound him to discover and to correct the error committed by the mechanics. The plaintiff did assume the superintendence of the erection of the building, as I think he was bound to do, upon a fair construction of his language, and must meet the obligations of his contract.
The papers before us do not show the size of the windows in the front parlor. The first story windows in the front parlor Were to be sixteen inches from the floor, and the windows themselves were probably ten or eleven feet in height. The plaintiff came from day to day to superintend the progress of the work, and while thus superintending, was he bound to ■have ascertained that the window sills in the front parlor were two and three-quarter inches higher from the floor, than was authorized by the plan ? To an inexperienced eye the difference would not have been perceptible; but should the knowledge and skill of a good architect at once have detected it? The testimony is not satisfactory to establish the affirmative of this proposition. ¥m. Thomas, an architect, says, “ that he does not consider that the building has been properly superintended. If it had been, the mistake would - have
been found out when the first story beams were on. Comparing the second story beams, I should have found it out.” Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Hunt, J.
On the 4th day of May, 1853, the plaintiff and defendant entered into a contract, by which the plaintiff was employed to draw plans, sections, elevations, &c., and to superintend the progress of a new dwelling house which the defendant intended to build in the city of Mew York, and for which drawings and superintendence the defendant agreed to pay the plaintiff the sum of five hundred dollars, at the stages of the work in the agreement specified. The referee, before whom the case was tried, found in favor of
the plaintiff for the amount of his claim, and in substance, that he had faithfully performed the service agreed to be per-* formed on his part. Judgment was entered upon his report. On an appeal to the General Term of the Superior Court of the city of ISTew York, this judgment, it is recited in the order of reversal, was reversed upon questions of fact. The ^plaintiff appeals to this court from this judgment of the General Term.
Each party claims to be entitled to a judgment upon the facts as exhibited on the trial before the referee. The referee agreed with the plaintiff in his view of the case; while the General Term concurred in the defendant’s view.
The first question that arises here, is as to the extent to which this court' may examine the facts, and by what principles it is tó be governed in deciding upon them. The rule is furnished by section 272 of the Code as amended by chapter 459 of the Laws of 1860. “ If the judgment be reversed at the General Term, and a new trial ordered, it shall not be deemed to have been reversed on questions of fact unless so stated in the judgment of reversal; and in that case the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the Court of Appeals.” The whole case upon the facts is thus presented to this court for review, and this court is to determine “ whether the judgment should have, been reversed ” upon the questions of fact. The respondent seeks to limit this power of review by a reference to the opinion of Judge Comstock in
Hoyt
v.
Thompson's Executor
(19 N. Y., 207, 212). The remarks of the learned judge .in that .case are not applicable here. That case was decided and the opinion pronounced in June, 1859, while the section we are now construing was not passed until 1860. The previous statute gave no such power as was given by the amended Code of 1860. It seems clear that upon the present law, -the case is open to an examination of the facts here, and that wo are called upon to decide whether the judgment of the Superior Court, reversing the judgment below upon the facts, was correct.
•;' The' referee found that the plaintiff bestowed as much’ time as was necessary in superintending the building, arid that the variations from the plan were hot caused by carelessness, negligence or inattention on his part. If these facts’ existed, the plaintiff was entitled to recover. It is not certain that the General Term held that these facts did riot exist. They say: “It appears to us, upon the testi-•*' mony now presented in the case, that whatever may have' been the deserved and general reputation of the plaintiff, and however strong the evidence of his giving such supervision as is ordinarily bestowed by architects, there was a failure in one particular, which is sufficient to defeat his action for the balance of his compensation.” I ássume, however, that they mean to say, that he did not give that super-; vision to the building which his duty required, and will examine the case on that theory.
The principal defects alleged to exist in the building are, that the balcony in front, and the front parlor windows, were about two and three-quarter inches higher from the parlor floor than was shown on the plans, and the same distance higher from the floor than the back parlor windows. Thát this variation did exist in fact was proved on the trial and is not now disputed.
■ How was it caused ? The referee says that it arose from •the masons not having accurately conformed to the specification and plan, and this appears to be the proof!
Was the plaintiff responsible for this fault of the masons?'
■ The plaintiff agreed to make “ the plans, sections, elevations, specifications', and to superintend the progress ” of the building to be erected. It was not his duty to do the work. The agreement between the defendant and his masons provides that the masons “ shall well and sufficiently erect and finish ” the building in question, “ agreeably to drawings and specifications made by Frederick Petersen.” It was riot the' duty of the plaintiff to “ lay out ” the work, as it is technically termed. This, it was expressly provided, should be done by the mason, who agrees “ to lay out his work himself.”
The plaintiff was bound to furnish the plans, specifications,
sections and .elevations, and. the mason was bound to lay out the work. In other but perhaps not plainer words, the plaintiff was bound to put down, and to show on paper, how every part was to be built, and the mason was to stake it out, measure his lumber, and make actual measurements on the ground and in the erection for such building. I do not think it was the duty of the plaintiff to measure the joists or timbers of which the different stories were to be constructed, and to determine by actual measurement that the ceiling of the first story had an elevation of thirteen feet, and the second had an elevation of eleven feet, or to measure the thickness and depths of the brick or stone walls. He furnished instructions and information in writing on those points, and it was the duty of the mason or carpenter to furnish the materials, to see that they were of the proper dimensions, and to put them in their proper places.
The defendant, however, contends that the obligation of the plaintiff to
“
superintend the progress ” of the building, bound him to discover and to correct the error committed by the mechanics. The plaintiff did assume the superintendence of the erection of the building, as I think he was bound to do, upon a fair construction of his language, and must meet the obligations of his contract.
The papers before us do not show the size of the windows in the front parlor. The first story windows in the front parlor Were to be sixteen inches from the floor, and the windows themselves were probably ten or eleven feet in height. The plaintiff came from day to day to superintend the progress of the work, and while thus superintending, was he bound to ■have ascertained that the window sills in the front parlor were two and three-quarter inches higher from the floor, than was authorized by the plan ? To an inexperienced eye the difference would not have been perceptible; but should the knowledge and skill of a good architect at once have detected it? The testimony is not satisfactory to establish the affirmative of this proposition. ¥m. Thomas, an architect, says, “ that he does not consider that the building has been properly superintended. If it had been, the mistake would - have
been found out when the first story beams were on. Comparing the second story beams, I should have found it out.” Mr. Windham, an architect, thinks the difference in height between the parlor windows in front and in rear, ought to have been discovered as soon as they began to lay the brown stone in front. Mr. Ritch, on the other hand, also an architect, says, “ that it is impossible to say when the error should have been discovered. It might have passed the observation of the architect, till the building'was completed. It is an error likely to pass any one’s observation. It would most likely pass his notice until the cornices were put up.” These were the only architects who testified on this point. It was proved by various witnesses that the plaintiff was diligent in his attendance upon the building. The respectable and intelligent referee who had the witnesses personally before him, and was able to form a better opinion of their intelligence and integrity than one who did not see them, must have held that the plaintiff was not bound to have discovered this defect. Mr. Traphagen testified that he told the plaintiff* the balcony was too high, and that he said it was all right. He was one of the contractors for the mason work, and it was apparently a question whether the fault was on his part or that of the plaintiff. The referee did not rely on his evidence. He found that the plaintiff had bestowed as much personal- attention upon the building as was necessary, and that the variations mentioned were not caused by carelessness, negligence or inattention on his part. I do not find it necessary to differ with him.
The circumstance that the defendant paid the masons the balance due them for the work, when the plaintiff refused them a certificate, on account of the defects in question, and which payment he was not bound to make, until the masons presented such certificate, is not important. If the masons neglected their duty, the defendant could certainly have made them respond in damages, and could have withheld the last payment to apply upon such damages. The fact, however, that they neglected their duty, furnishes no evidence that the plaintiff had discharged his. Each may
have been in fault,, and each liable in damages, and a failure to prosecute one, or to secure an easy remedy against him, does not discharge the default of the other, nor do I understand that the referee based his decision upon such a theory. All the facts on that branch of the case are set forth by the referee, that such effect may be given to them as they are entitled to. This is often required by counsel, and acceded to by referees, when the facts are not essential. The referee, however, places his decision upon the ground that the plaintiff had fully performed his duty, and was entitled to his compensation.
The' judgment of the General Term should be reversed, and final judgment for the plaintiff entered.