Weeks v. O'Brien

The Superior Court of New York City

Weeks v. O'Brien

27 Jones & S. 28, 35 N.Y. St. Rep. 463, 59 N.Y. Sup. Ct. 28

CourtThe Superior Court of New York City

DecidedJanuary 5, 1891

StatusPublished

This text of 27 Jones & S. 28 (Weeks v. O'Brien) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Weeks v. O'Brien, 27 Jones & S. 28, 35 N.Y. St. Rep. 463, 59 N.Y. Sup. Ct. 28 (N.Y. Super. Ct. 1891).

Pincite

Opinions

Per Curiam.

The action was to recover the amount of the last payment upon a building contract provided to be paid upon the architect’s certificate. In the plaintiffs case it appeared that the contract had not been performed in several particulars. The most important of these was that the cellar bottom had not been laid in accordance with the contract which required that it should be made water-tight. Its situation was such that it was subject to the flowing of water. It had been once laid by a sub-contractor of the plaintiff, but about the time for the completion of the contract water had come in and broken up the bottom. It was in this state when the plaintiff left the work. The architect refused to give a certificate.

[30]*30On the trial it was argued by the plaintiff that the architect’s refusal was unreasonable, as the work not done was a minor and comparatively unimportant part of the work done under the contract, and the contract had been substantially performed.

A cellar has an important relation to the building above it, in respect of health, comfort, and the state of the building itself. The omission to comply with the contract could not be called unintentional in the sense of those cases which have allowed the certificate to be dispensed with. Phillip v. Gallant, 62 N. Y. 256 ; Woodward v. Fuller, 80 Ib. 312. There was not an omission to notice it because the other details of the contract were numerous. Attention had been given to the cellar, and everything done or omitted had purpose and intention. The plaintiff failed to prove that the contract had been substantially performed, or that the certificate had been unreasonably withheld. This called for the dismissal of the complaint. The jury could not have used the testimony in a way that would have justified them in finding for the' plaintiff on these matters.

There was a second cause of action, and the counsel for appellant argues that it should have gone to the jury. There was no request that this should be presented to the jury, and the manner in which the action was treated led to the second cause of action not being noticed.

Judgment affirmed, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The action was to recover the amount of the last payment upon a building contract provided to be paid upon the architect’s certificate. In the plaintiffs case it appeared that the contract had not been performed in several particulars. The most important of these was that the cellar bottom had not been laid in accordance with the contract which required that it should be made water-tight. Its situation was such that it was subject to the flowing of water. It had been once laid by a sub-contractor of the plaintiff, but about the time for the completion of the contract water had come in and broken up the bottom. It was in this state when the plaintiff left the work. The architect refused to give a certificate.

[30]*30On the trial it was argued by the plaintiff that the architect’s refusal was unreasonable, as the work not done was a minor and comparatively unimportant part of the work done under the contract, and the contract had been substantially performed.

A cellar has an important relation to the building above it, in respect of health, comfort, and the state of the building itself. The omission to comply with the contract could not be called unintentional in the sense of those cases which have allowed the certificate to be dispensed with. Phillip v. Gallant, 62 N. Y. 256 ; Woodward v. Fuller, 80 Ib. 312. There was not an omission to notice it because the other details of the contract were numerous. Attention had been given to the cellar, and everything done or omitted had purpose and intention. The plaintiff failed to prove that the contract had been substantially performed, or that the certificate had been unreasonably withheld. This called for the dismissal of the complaint. The jury could not have used the testimony in a way that would have justified them in finding for the' plaintiff on these matters.

There was a second cause of action, and the counsel for appellant argues that it should have gone to the jury. There was no request that this should be presented to the jury, and the manner in which the action was treated led to the second cause of action not being noticed.

Judgment affirmed, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

27 Jones & S. 28, 35 N.Y. St. Rep. 463, 59 N.Y. Sup. Ct. 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weeks-v-obrien-nysuperctnyc-1891.

Opinions

Related

Cite This Page — Counsel Stack