Michael Meyers, Respondent, v. Isaac Shapiro, Appellant

Michael Meyers, Respondent, v. Isaac Shapiro, Appellant. Second Department, June 29, 1908. Contract — construction of sewer — condition precedent to recovery. Where a contract for the construction of a sewer provides for payment on the completion of the work and the delivery of a certificate from the building department, or any department of the city of New York,, that the work has been properly done, the contractor as a condition precedent to recovery must procure such certificate or show that the same has been unreasonably or unjustifiably withheld. Appeal by the defendant, Isaac Shapiro, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, rendered on the 31st day of October, 1901. Adolph Engel, for the appellant. John H. Steenwerth, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: ■ The plaintiff brought this action to recover.the sum of $115 for the construction of a sewer for the defendant. The pleadings were oral and demanded the sum above mentioned for work, labor and materials used, in the construction of the sewer. The plaintiff-put in evidence a written contract, which provided: “ When all work has been completed, and a certificate from the Building Department or any Department of the City of iSTew York is delivered to the party of the first part, the party of the first part is to pay to the party of the second part.the sum of $115.00 for all services rendered and materials furnished in and about said'work.” The trial was once adjourned for the express purpose of permitting the plaintiff to produce the certificate required under the contract, but no such certificate was produced nor was any excuse proved, except that the plaintiff testified that he called on the chief engineer of the sewer department and that that official had informed him that his department did not issue certificates to show that the work had been properly done. The contract, however, did not provide for the contingency that the sewer department — if there is such a department — did not issue these certificates; the condition of payment was that the “ building department ” or some department of the city should certify that the work had been properly done, and, as the plaintiff relied upon the contract, he was bound to produce such a certificate or to show that such certificate had been unreasonably or unjustifiably withheld. There was no attempt to do this, and the defendant’s evidence shows that the work was not completed in some details, although the plaintiff testified, without objection, that the work was completed under the contract. But the defendant’s liability was contingent upon the certificate which he provided for in his contract, and he had a right to insist upon the performance of this condition. It was error, therefore, to refuse to dismiss the complaint upon defendant’s motion, and for that error the judgment should be reversed, with costs. Hooker, Gaynoe, Eioh and Miller, JJ., concurred. ’ Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.