Patrick H. McGratty and Others, Plaintiffs, v. Frederick Haberman, Defendant

Patrick H. McGratty and Others, Plaintiffs, v. Frederick Haberman, Defendant. Second Department, June 5, 1908. Building contract — agreement that changes be approved —conditions precedent to recovery by sub-contractor— evidence —varying express contract by proof of custom — overtime work. Where a contract with an architect provides that no additions to or alterations . of the plans and specifications shall be made without the approval of a consulting architect, and the plans are changed by the architect without such approval, a sub-contractor who has furnished material and labor under the changed plans cannot recover against the owner although the architect agreed to see that he was paid. In an action against the owner evidence as to whether the architect gave orders ■ for the changed work on his own authority and had been in the habit of doing so and the custom of architects in that respect is properly excluded, for he had no authority to change the plans and specifications, and the express terms of a contract cannot be affected by a custom. It is immaterial that the sub-contractor did not know of the provision requiring changes to be approved by the consulting architect. A contractor cannot recover wages paid for overtime work made necessary byhis own default in timely performance. Motiox by the plaintiffs, Patrick H. McGratty and others, for a new trial upon a case containing exceptions, ordered to be heard at ■ the Appellate Division in the first instance after a trial upon a non-suit directed by the court at the close of the plaintiff’s case upon a tidal at the Kings County Trial Term in October, 1907. The complaint is on quantum, meruit for work and material in the election of a building of the defendant; and also for extra expense in the rate paid for wages for working overtime. The plaintiff put in evidence an agreement in writing between the defendant and Horgan &, Slattery, a corporation, in which the ■latter agreed to make plans and specifications for an apartment house for the defendant, and superintend its construction, the defendant to pay therefor 5 per cent, on the cost of construction. It was also agreed therein that the plans and specifications were to be submitted to a consulting architect to be employed by the defendant (but paid out of the said 5 per cent., namely, ■£ thereof) for suggestions, alterations and additions, which had to be accepted by the said Horgan & Slattery, and the said consulting architect was named ' therein; that the drawings and specifications should not be altered without the approval of such - consulting architect; that additional work, and work not included in the drawings and specifications, and all contracts before being executed, should first be submitted to him, and bear his signature. It was also shown that the plans and specific cations were drawn and settled and a written contract for the erection of the building given to one Eeilly by the defendant in the way specified in the said contract with Horgan & Slattery; that the plaintiffs contracted in writing with the said Eeilly to do the marble work on the said building; that after the work was started the defendant went to Europe, and did not return for about three months; that during his absence the said Horgan & Slatterychanged the carriage entrance to the court of the said building and the -hall leading thereto without submitting the same to the said supervising architect; that the said contractor Eeilly in the presence of the plaintiffs refused to do the work required by such changes without written orders of the architects, when requested by Horgan, an officer of the said Horgan & Slattery to do it; that thereupon the said officer told the plaintiffs to do it and he would see they were paid for it; and they thereupon did it during the defendant’s said absence. This action is to recover the value of the work and material used therein, and also for the extra expense in the rate of wages incurred in working overtime, i. e., after Union hours, also at the request of the said Horgan & Slattery. William F. Clare, for the plaintiffs. Abraham Benedict, for the defendant. [MAJORITY — Gaynor, J.:] Gaynor, J.: The non-suit was proper. The plaintiffs have sued the wrong party. Horgan & Slattery had no authority to change the plans and specifications, or order any work or material not embraced therein and in the contract (Langley v. Rouss, 185 N. Y. 201). The statement in the brief for the plaintiffs that the carriage way had to be changed because it was found by test that a carriage could not go through it, and was changed only to that extent, has no foundation — if that could make any difference. The exceptions to 'the sustaining of the defendant’s objections to the questions of the .witness Horgan, an officer of Horgan & Slattery, whether he gave orders for work on the .building on his own authority, and had been in the habit of doing so, and of another witness as to the custom of architects in that respect, must also be overruled. That he had assumed authority which he did not have was no matter; and there can be no lawful custom to break contracts. Proprietors who build houses are not the mere victims in law of architects and contractors. If it be taken as true that the plaintiffs did not know of the provisions of the contract of defendant with Horgan & Slattery, the case would not be changed. It was for them to find out what the authority of Horgan & Slattery was. But the sub-contract of the plaintiffs with the contractor also contains a provision that no alteration should be made in the work shown on the plans and specifications “ except upon a written order of the architects ”. The contract of the defendant with Reilly contained the same provision, and that no claim “ based upon any alleged verbal agreement ” should be’made. The claim of the plaintiffs for the amount paid by them in wages over the regular rate for work done after regular hours, when such work was made necessary by their being behind with their contract, needs no comment. The motion for a new trial should be- denied. Woodward, Hooker, Rich- and Miller, JJ., concurred. Motion for new trial denied, with costs.