H. P. Sickels Company, Respondent, v. McCurdy & Norwell Company, Appellant

H. P. Sickels Company, Respondent, v. McCurdy & Norwell Company, Appellant. Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 21st day of March, 1914, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial. [MAJORITY — Per Curiam:] Per Curiam: The building was not, in fact, completed at the time the paper was delivered, and as the evidence tends to show neither the architect nor the parties to the contract themselves regarded the work covered by the contract as completed. The other certificates had been given to the plaintiff contractor and according to the testimony of the architect it was usual to give certificates of this character to the contractor and not to the owner. Mr. McCurdy, the president of the defendant, testifies that the paper was made at his request for the specific purpose of delivering it to the bank as a memorandum of the amount of money which had been paid on the building, and for no other purpose. We are of the opinion that it was a question of fact as to whether the paper delivered by the architect to the owner was a final certificate within the meaning of the contract, or a mere memorandum as claimed by the defendant. The judgment and order should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.