Oberlies v. Bullinger

• Decision Date: 03 May 1892
• Citation: 30 N.E. 999,132 N.Y. 598
• Parties: OBERLIES v. BULLINGER.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 598

30 N.E. 999

OBERLIES

v.BULLINGER.

Court of Appeals of New York,

Second Division.

May 3, 1892.

Appeal from supreme court, general term, fifth department.

Action by Henry Oberlies against Balthasar Bullinger to recover a balance due on a building contract, and for extra work. Plaintiff sustained a nonsuit, which was affirmed by the general term. Plaintiff appeals. Reversed.

STATEMENT BY THE COURT.

June 2, 1887, the parties to this action entered into a written contract by which the plaintiff agreed to build for $3,050 a dwelling for the defendant, and complete it on or about November 1st of that year. The defendant paid $1,900 on the contract, and this action was brought to recover $1,150, the remainder of the contract price, and $73.75 for extra work claimed to have been done. The action was defended on the ground that the building was not constructed in accordance with the plans and specifications. At the close of the plaintiff's case, the defendant moved for a nonsuit on the ground ‘that the plaintiff has not shown facts sufficient to constitute a cause of action, and especially he had not shown performance of the contract.’ The motion was granted, and the plaintiff duly excepted. The plaintiff asked to go to the jury upon the question of substantial performance, which was denied, and exception taken. The plaintiff also asked to be permitted to go to the jury upon his right to recover the value of the extra work claimed to have been done in changing the front stairway, for which he claimed $48. This request was denied, and an exception taken. These exceptions were ordered to be heard in the first instance at general term, where they were overruled, and a judgment ordered for the defendant, with costs, upon the order of the circuit. The plaintiff appeals to this court.

Abraham Benedict, for appellant.

Walter S. Hubbell, for respondent.

PER CURIAM.

The contract contains this provision: ‘ Fourth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Oscar Knebel, architect, employed by party of the second part [defendant] to superintend the construction of said building, with a view to the due execution of the work on the part of the party of the first part, [plaintiff,] and his decision shall be final and conclusive; but, should any dispute arise as to the true value of the alterations, deviations, additions, or omissions in the work or materials hereby contracted for, the value in dispute shall be determined by two competent persons,-one employed by the party of the first part, and the other by the party of the second part,-and they shall have power to name an umpire, whose decision shall be binding on all parties.’ The defendant seeks to uphold the nonsuit on the ground that an arbitration to settle the amount due under the contract was a condition precedent to the plaintiff's right to recover, and that, having failed to show that an arbitration has been had, or that he has offered to arbitrate, he was not entitled to recover. The answer to this position is that this question was not raised on the trial. The contest at circuit was whether there was a deviation...