Weeks v. O'Brien

• Decision Date: 06 February 1894
• Citation: 141 N.Y. 199,36 N.E. 185
• Parties: WEEKS v. O'BRIEN.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 199

36 N.E. 185

WEEKS

v.O'BRIEN.

Court of Appeals of New York.

Feb. 6, 1894.

Appeal from superior court of New York city, general term.

Action by Benjamin Weeks against James O'Brien, executor of Ellen O'Brien, deceased, to recover the amount of the last payment on a building contract. From a judgment of the general term (12 N. Y. Supp. 720) affirming a judgment dismissing the complaint, plaintiff appeals. Reversed.

Brainard Tolles, for appellant.

Abram Kling, for respondent.

PER CURIAM.

The complaint was dismissed, on the ground that it contained no averment that the architect unreasonably withheld his certificate of the completion of the building. The complaint was defective in this respect. By the true construction of the building contract, the procuring by the plaintiff of the cerficate of the architect that the building had been completed was a condition precedent to his right to recover, under the contract, the last installment of $6,158, for which this action is brought. To meet this condition, and to show a right of action, it should have been averred in the complaint, either generally or specially, that the conditions precedent had been performed, or if the plaintiff relied upon a matter excusing him from procuring the certificate, the facts should have been stated. Thomas v. Fleury, 26 N. Y. 26;Bowery Nat. Bank v. Mayor, etc., of New York, 63 N. Y. 336;Doll v. Noble, 116 N. Y. 233, 22 N. E. 406;Oakley v. Morton, 11 N. Y. 25. The complaint neither averred that the certificate had been procured, nor that it was unreasonably withheld. A copy of the contract containing the provision as to the architect's certificate was annexed to the complaint. The action was upon the contract, and the complainant alleged performance by the plaintiff, and that the building had been substantially completed according to its terms. The contract made the architect's certificate the evidence of that fact, and the plaintiff could not recover upon an allegation of performance, upon proving that the building had in fact been completed, without procuring the architect's certificate, or showing that it had been unreasonably refused, or that the defendant had waived its production.

A defendant is authorized to raise the objection that the complaint does not state facts sufficient to constitute a cause of action on the trial, although the objection has not been taken either by demurrer or answer. Code, § 499. At the conclusion of the plaintiff's evidence the defendant's counsel moved to dismiss the complaint on the ground that, under the contract, the certificate of the architect was a condition precedent. The counsel for the plaintiff asked to go to the jury upon the question of unreasonable refusal of the architect to give the certificate. The court, in answer, said that there is no such issue, and referred to the fact that there was no allegation upon the subject in the complaint. This was the first reference on the trial to any defect in the pleading. The complaint set out the contract, its performance by the plaintiff, the amount unpaid, and demanded judgment therefor. The answer denied the complaint, and set up as a counterclaim, in substance, that the plaintiff had not completed the building, but after he had commenced the work he abandoned it before completion, and that the defendant, after giving due notice to the plaintiff, proceeded, under the fourth section of the contract, to complete the building according to the speciflcations, and did complete it, at a cost of $2,904.58, and also that the defendant had sustained damages by reason of delay, in a...