WILLIAMS, J.:
The plaintiff did not set out the contract in his complaint, but proved it on the trial, and sought to recover pursuant to the terms thereof. He was not bound, as a matter of pleading, to declare upon the contract, but might declare generally for the materials furnished and work performed, and on the trial the contract might be used to determine the rights of the parties. ( Hogan v. Laimbeer, 66 N.Y. 604.) It is not necessary to consider the question whether the $1,000 note was to be regarded as a payment on the contract or not, as the court held that the plaintiff had no right to recover or establish his lien for anything.
There may well be a question whether in fact the note was delivered as payment or simply as additional security.
That question can be considered and determined upon another trial, which we are inclined to order.
The only question to be determined now is whether the court was justified in dismissing the complaint upon the ground that the architects' certificate had not actually come into the plaintiff's custody before the action was commenced. Before the action was commenced the contract had concededly been complied with fully, so far as the furnishing of the materials and the performing of the work were concerned.
By the decision of the trial court the plaintiff was defeated wholly in his action because the architects' certificate had not been delivered to the plaintiff before he commenced his action.
The contract did not provide, as the decision and the learned justice's opinion seem to imply, that the certificate should be furnished or produced to O'Neill before the payments became due. It merely provided that the work should be done to the satisfaction of the architects, to be testified by the certificate, and the payments should be made when the work was completed to the satisfaction of the architects and that the certificate should be obtained. The question, therefore, is reduced to this: Could the plaintiff's cause of action be defeated merely because the certificate was not procured by the plaintiff before the action was commenced. It bore date prior to the commencement of the action. Its date was January, 1894. It seems not to have been delivered to the plaintiff until after the commencement of the action. Whether, however, under the peculiar language of the contract the actual delivery of the certificate to the plaintiff before the commencement of the action was a condition precedent to the right to demand payment of the money or to maintain the action, the certificate having actually been made by the architects before the action was commenced, and having been produced by the plaintiff at the trial, we do not deem essential to determine upon this appeal.
No question was raised upon the trial so far as the record discloses as to the failure to obtain or furnish the certificate. There was no motion to dismiss the complaint upon any such ground, and the plaintiff's attention was not called to any such question. It may have been argued at the time of the submission of the case to the court, but the record does not disclose the fact that it was.
The first suggestion of this question in the record was in and by the opinion and decision of the court. If such question had been raised at the trial it might have been obviated by proof of a waiver of the alleged condition. Indeed the evidence as it is would justify a finding that there was such a waiver. The contract required a certificate to be made as a condition of the payment of the first as well as the last installment for the work and materials, and yet the $1,000 in cash was paid and the $1,000 note was given without requiring the certificate, and when this action was begun O'Neill made no objection by reason of the non-production of the certificate. He did not ask that a certificate be obtained. He said nothing whatever about a certificate, but contented himself with complaining about the work itself.
These facts fairly construed would have justified a finding that there had been a waiver of the condition precedent of furnishing a certificate, even if such condition under the terms of this contract existed. It seems to us that upon the facts disclosed in this case the learned trial court erred in dismissing the complaint on the merits. The materials had all been furnished and the work had all been properly done before the action was commenced. The plaintiff was entitled to be paid the balance of the contract price, whatever it was, and to have his lien established therefor. The ground of the dismissal of the complaint was merely technical, and cannot be sustained upon the facts disclosed upon the trial and the conduct of the trial.
The judgment appealed from should be reversed and a new trial ordered, with costs of the appeal to the appellant to abide event.
BARRETT, RUMSEY, PATTERSON and O'BRIEN, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.
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