Vacuum Cleaner Co. v. Broadway Cortlandt Co.

Bijur, J. The complaint alleges, in substance, that the plaintiff contracted with defendants to install a vacuum cleaner plant in a certain building, and that it should receive final payment, upon the issuance by the architect of [175] a certificate that the work had been completed to his satisfaction. It then alleges that it has completed the work; that thereafter the parties agreed to make a test to ascertain whether the same fulfilled the requirement of the agreement, and such test was made and the plant “ duly complied with all the terms of the said contract;” that it then demanded the certificate from the architect, which was refused; that it then demanded payment from the defendants, who refused, stating as their reason, the absence of the certificate and also that the test showed that the plant had not fulfilled the requirements of said contract. There is a further allegation that since defendants’ refusal to pay they have used the plant for the purpose for which it was intended continuously, and have accepted the same. The allegation of complete performance of the contract, which is clearly made by the pleader, if proved, makes out a case of unreasonable refusal on the part of the architect to furnish the certificate, and, therefore, excuses its production as a condition precedent to payment. Ross v. City of New York, 85 App. Div. 611, 612; Bowery Savings Bank v. Mayor, 63 N. Y. 336. Judged by the pleading alone, there seems also to be a sufficient allegation of acceptance of the plant (the character of which is not disclosed by the complaint) to constitute a waiver by defendants of the issuance of the certificate as a prerequisite to payment. See Smith v. Alker, 102 N. Y. 87; Duell v. McCraw, 86 Hun, 331; Tilden v. Buffalo Office-Bldg. Co., 27 App. Div. 510. Seabury and Guy, JJ., concur. Judgment reversed and new trial granted, with costs to appellant to abide event.