Traitel v. Oussani

Dowling, J. Plaintiff sues to recover for a balance due for work, labor and services, and for the price of certain repairs upon premises belonging to defendant. As to the former item, amounting to $100, it is claimed to be due under a certain agreement in writing between the parties, which agreement, among' other things, provided that, before any payment became due to plaintiffs from defendant, a certificate should be obtained from and signed by a certain architect therein named. The balance sued for is claimed to be due as part of the last payment provided for by the agreement, and concededly no such certificate for said last payment was obtained from or signed by said architect. This action is brought upon the theory that the contract was fully performed by plaintiffs. In such a case, where a certificate is required to be obtained from an architect before a payment becomes due, the plaintiff must either procure the architect’s certificate, or show that it has been unreasonably refused, or that defendant has waived its production. Weeks v. O’Brien, 141 N. Y. 202; Excelsior Terra Cotta Co. v. Harde, 90 App. Div. 8. There is no such proof in this case, and the plaintiffs’ reliance as to waiver is upon a case (Haden v. Coleman, 73 N. Y. 567) where, as a matter of fact, the architect had never superintended the work in question, which is not this case. Gildebsleeve and Dugbo, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.