#### John Borup, Respondent, *v.*Sarah E. Von Kokeritz, Appellant.

Second Department,

May 25, 1914.

Contract—building contract—remedies of contractor where owner refu'ses to pay installments—when architect’s certificate rightfully withheld —when no recovery upon quantum meruit — completion of building by owner — measure of damages.

Where performance of a building contract has been stopped by the fault of the owner, the contractor may elect to rescind and sue on a *quantum meruit*for the value of his work; or he may sue upon the contract to recover for work done according to the contract and for the loss sustained.

But where he sues upon a *quantum meruit*he is bound to establish that performance was stopped by the defendant.

A building contract provided for payment of installments due the contractor only upon certificates issued by the architect. Evidence examined, and *held,*to fail to establish that the contractor was entitled to an architect’s certificate, the work being defective.

Where the contractor does not show himself entitled to an architect’s certificate of due performance, the fact that the owner refused to make payments for that reason does not constitute a breach of contract which entitles the contractor to sue upon a *quantum meruit.*

*395If the architect were justified in withholding his certificate upon the ground of non-performance, it is immaterial that he also refused it upon an additional ground not authorized by the contract.

Where the owner, sued on a building contract for a *quantum*meruit, completed the building as permitted by the contract, she became liable to the contractor for the contract price less the amount expended for the completion. Under such circumstances the contract requirements as to the architect’s certificate have no application,

Appeal by the defendant Sarah E. Von Kokeritz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of April, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21th day of May, 1912, denying defendant’s motion for a new trial made upon the minutes.

*Michael J. Tierney,*for the appellant.

*Sydney A. Syme,*for the respondent.

Jenks, P. J.:

The plaintiff began to build a house for the defendant under a written contract, but quit the work, brought this action on a *quantum meruit*and recovered a verdict for his full claim. He contended that the defendant broke the contract by failure in a partial payment due under the contract. The contract provided for such payments upon certificates of the architect. When plaintiff closed his case the court expressed opinion that the plaintiff could not recover because of performance or of refusal of the architect’s certificate, as it seemed clear that plaintiff had not performed the work to the point of entitling him to the certificate. The case was reopened, but the witness thereupon called by the plaintiff did not cure the defect — quite the contrary. And when the plaintiff again closed his case, the court commented: “I have come to the conclusion that in the first place, so far as the refusal of the architect, based upon defects is concerned that there is no case made out here to go to the jury, that is to say, to raise the question of the defects not being substantial and warranting the withholding of the certificate, if it is raised on that ground,” etc. The case presented by the defendant did not incidentally avail *396the plaintiff. The court in its charge, speaking as to the facts, said: *“*Therefore if this architect had refused that certificate, refused to issue that certificate upon the ground of those defects, his refusal would be binding upon both plaintiff and defendant. It would not be competent for either party to come here and say that that refusal was unreasonable.” But the court submitted the case to the jury with the instructions that they must return a verdict for the plaintiff in an amount conceded to be due by the defendant, or that they must return a verdict for the plaintiff in the full amount of the claim if they found that the defendant directed the architect not to exercise his judgment on the merits as to issuing the certificate, and not to issue the certificate until McOarten (the superintendent of construction in defendant’s employ) recommended it, and that on the 29 th day of July (the date of alleged breach) the architect gave the plaintiff information of that fact, and that by reason of that restriction and information the plaintiff took the stand he did — refused to go on with the work. As the verdict was for the full amount, which the court told the jury could not be found save in accord with these instructions, it follows that we must consider the soundness of the instructions.

The general rule is, that if the performance had been stopped by fault of the defendant, the plaintiff could elect to rescind and to sue on a *quantum meruit*for the value of his work, or to sue upon the contract to recover for the work done according to the contract and for the loss, in profits or otherwise, sustained. *(Jones*v. *Judd,*4 N. Y. 411, 414; *Wright*v. *Reusens,*133 id. 298, 305; *Heine*v. *Meyer,*61 id. 171; *Hardiman*v. *Mayor,*21 App. Div. 614, 615.) As the plaintiff suéd on a *quantum meruit,*he was bound to establish that performance had been stopped by the defendant. The act of the defendant relied upon by the plaintiff was failure to pay an installment when due under the contract. The certificate of the architect by the terms of the contract was made a condition precedent to that payment. The certificate was applied for and refused. I agree with the learned court that the evidence did not establish that the plaintiff was entitled to it. As against the testimony of the plaintiff as to the circumstances of the *397refusal, the architect called by the plaintiff testifies that he never said to the plaintiff that he would issue the certificate but for the lack of McOarten’s recommendation, that the absence of such recommendation was not the only reason, but that he told the plaintiff that he (the architect) could not give a certificate because the work was defective, that he did not base giving the certificate on McOarten’s recommendation, and that he refused it in this instance because of defective work. As I read the record, the requirement by the architect as to the authorization from McOarten was a condition made arbitrarily by the architect in a circular letter written to the parties at the time when McOarten was employed as superintendent. From the circumstance that neither party seems to have objected affirmatively to that condition, the architect seemed to assume that he had authority to impose it, as I fail to find any proof that the defendant ever sought to make McOarten’s recommendation a prerequisite to the issuance of the architect’s certificate. However this may be, the architect’s testimony is that he refused the certificate for the non-performance of the plaintiff, and so informed the plaintiff. The facts lend credence to this testimony. If the plaintiff was not entitled to the certificate, he was not entitled to the payment under the contract, and consequently the defendant did not legally stop performance by her omission or refusal to make the first payment in the absence of the certificate. And her l’ight to withhold the payment was not affected if the architect based his refusal to issue the certificate upon a ground additional to non-performance, and that additional ground was not authorized by the contract.

The defendant pleaded and gave proof that in accord with the permissive terms of the contract she completed it. Therefore, she was liable to the plaintiff for the contract price less the amount required for such completion. *(Beecher*v. *Schuback,*1 App. Div. 359; affd. on opinion below, 158 N. Y. 687; *Ogden*v. *Alexander,*140 id. 356; *Ringle*v. *Wallis Iron Works,*149 id. 439; *Wakeham & Miller*v. *Roman Catholic Church,*150 App. Div. 159.) The contract requix*ement as to the certificate of the architect has no application. *(Beecher*v. *Schuback,*supra; *Wakeham & Miller*v. *Roman Catholic Church,*
      *398
      *supra,*and authorities cited.) The defendant conceded that the plaintiff was entitled to a verdict for $1,616, the difference between the original contract price and the cost of completion.

I advise that the judgment and order be reversed and a new trial be granted, costs to abide the event, unless within twenty days the plaintiff consent to a reduction of the verdict to $1,616, in which event the judgment, as thus modified, and the order, are affirmed, with costs of this appeal to the appellant.

Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff consent to a reduction of the verdict to $1,616, in which event the judgment, as thus modified, and the order, are unanimously affirmed, with costs of this appeal to the appellant.