#### Philip G. Hubert *et al.,*Respondents, *against*John W. Aitken, Appellant.

(Decided May 6th, 1889.)

In an action to foreclose a lien for services as architects in preparing plans • for and superintending the construction of. certain buildings, a counter-claim was set up for negligence of plaintiffs. It appeared that the buildings were apartment houses, to be heated by steam ; that the sectional area of the boiler flues for the steam heating apparatus was largely in excess of the sectional area of the chimney flues designed to receive the smoke and gasses from the boiler .fires, thus preventing proper combustion in the furnace, and entailing on defendant the cost of building new chimney flues. *Held,*that plaintiffs were bound to know how to proportion the chimney flues to the boilers, and could not excuse themselves by proof that they conferred with the contractor for the steam heating apparatus and obtained from him the dimensions of the chimney flues.

But while such negligence entitles defendant to a deduction of the damages thereby caused, from the amount agreed to be paid for such services, it cannot wholly defeat a recovery on such agreement as an entire contract.

Under such an agreement an architect is bound only to exercise ordinary care and to use reasonable powers of observation and detection. Where he appears to have done so, the mere fact that inferior material has been used in some places, or that work was done improperly, contrary to his directions, does not establish negligence in performance of his contract.

Appeal from a judgment of this court entered upon the report of a referee.

The action was brought to foreclose a lien for compensa*238tion for services rendered by plaintiffs as architects employed by defendant to prepare plans and specifications and superintend the construction of a building erected by him. The building was an apartment house, known as the Mt. Morris Apartment House, situated in 130th Street, New York City, 50 feet front by 110 feet deep, constructed principally of brick and stone, and containing steam-heating apparatus and a passenger elevator. The total cost of construction was $118,000. Defendant set up a counterclaim for alleged negligence on the part of plaintiffs, resulting in defects, omissions, and mistakes of contractors and workmen. On trial before a referee, he found for plaintiffs • for the full amount claimed, and judgment for plaintiffs was entered on his report. From the judgment defendant appealed.

*J. R. Cuming,*for appellant.

*Lemuel Skidmore,*for respondents.

Yah Hoesen, J.

The learned referee, in answer to a request of the defendant, has found that the sectional area of the boiler flues for the building was 404 inches; that the sec-: tional area of the chimney flues designed to receive the smoke and gases from the boiler flues was, at its base, where it was entered by the boiler flue, 272inches; that the area provided by said chimney was inadequate for the service of said boiler fires; that by reason of the inadequacy of the said chimney flue, the proper combustion of the coal in said boiler fires could not be secured ; that to supply the deficiency of said chimney flue the defendant will necessarily and properly be required to build a new chimney flue on the outside of said building; and that the necessary cost and expense thereof will be $1,000. But the learned referee was of opinion that the plaintiffs were not liable to the defendant for the expense of supplying the deficiencies of the chimney, because, though architects by profession, they are not experts in steam-heating, and, to use the referee’s language, “ all that was required of them was that they should confer with whoever became the contractor for the steam heating, and *239ascertain what dimensions were required for the chimney flue to afford a draft for the steam-heating system. This they did, and Tudor, the contractor for the steam-heating appliances, gave the dimensions. While it is obvious that this chimney was insufficient, the responsibility should rest upon the person who committed the fault.”

I am unable to agree with the referee in his conclusion. The plaintiffs are architects of standing, who assume to be able to plan and superintend the construction of first-class apartment houses, to be heated by steam, and to be provided with every convenience demanded by the luxurious tastes of the day. They are not architects in a rural community, but in the first city in America. Steam-heating is, as we all know, common—if not a necessity—in all apartment houses of large size, and of a high class. It is true that houses of this description are of recent introduction, but they are now a very important part of our system of economics, for in some of the new streets they are more numerous than private residences, or tenements of the kind that formerly was in vogue. The architect who undertakes to construct a house that is to be heated by steam is groping in the dark unless he knows how large a chimney is required. It is as necessary that the architect should know what is needed to make the steam-heating apparatus serviceable as it is that he should know how sewer gas is to be kept out of the house. No one would contend that at this day an architect could shelter himself behind the plumber, and excuse his ignorance of the ordinary appliances for sanitary ventilation by saying that he was not an expert in the trade of plumbing. He is an" expert in carpentry, in cements, in mortar, in the strength of materials, in the art of constructing the walls, the floors, the staircases, the roofs, and is in duty bound to possess reasonable skill and knowledge as to all these things; and when, in the progress of civilization, new conveniences are introduced into our homes, and become, not curious novelties, but the customary means of securing the comfort of the unpretentious citizen, why should not the architect be expected to possess the technical learning respecting them *240that is exacted of him with respect to other and older branches of his professional studies ? It is not asking too much of the man who assumes that he is competent to build a house at a cost of moje than $100,000, and to arrange that it shall be heated by steam, to insist that he shall know how to proportion his chimney to the boiler. It is not enough for him to say, “I asked the steam-fitter,” and then throw the consequences of any error that may be made upon the employer who engages him, relying upon his skill. Responsibility cannot be shifted in that way. In the case of *Moneypenny*v. *Hartland*(twice reported, once in 1 Carr. & P. 352, and then in 2 Carr. & P. 378), it was held that if a surveyor be employed to erect a bridge, and form the approaches to it, he is bound to ascertain for himself, by experiments, the nature of the soil, even although a person, previously emplo)red for that purpose by his employer, has made such experiments, and has given him the result, at his employer’s request; and if the surveyor.makes a low estimate, and thereby induces persons- to subscribe for the execution of the work, who would otherwise have declined it; and it turns out that, owing to his negligence and want of skill, such estimate is grossly incorrect, and that the work can be done but at a much greater expense, he is not entitled to recover for his services.

I am of opinion that the defendant should be allowed to deduct from the plaintiff’s demand against him the cost of correcting the defects in the chimney, $1,000.

I have read the appeal book through with care, but I find nothing that warrants us in allowing a greater deduction from the judgment. I do not mean to say that the defendant has no other causes of complaint, but merely that the testimony is such that we can,not hold that the referee was not justified in deciding those matters in the plaintiff’s favor ( *Westerloo*v. *De Witt,*36 N. Y. 340).

The judgment should be reversed and a new trial ordered, with costs to abide the event, unless the plaintiffs consent that the judgment be modified by deducting therefrom $1,000, in which event the judgment will be affirmed, as modified, without costs of appeal.

*241Larremore, Ch. J., concurred.

Order accordingly.

A reargument of the appeal was subsequently ordered, on which the folio wing" opinion was rendered.

Larremore, Ch. J.

The point upon which chief stress was laid in the reargument of this appeal, was that of the entirety of the contract between the parties. The plaintiffs are architects, who agreed to draw the plans for, and also, according to the custom of their profession, supervise the construction of the building referred to in the complaint. It appears that there was one grave fault in said plans, and that there were some quite serious departures from the specifications and from the best workmanship in the erection of said building. The learned counsel for appellant therefore argues that the architect has not completely performed his contract, and that as said contract was an entire one for professional skill and services, and not a divisible or apportionable one, no recovery can be had, and the complaint should have been dismissed. But a very simple analysis will show that this contention is founded on a misconception. With regard to the plans, it appears that the contract was completely performed. Drawings for the whole building were furnished, and it was actually constructed in accordance therewith. After the building was finished, it was discovered that the chimney flues, connecting with the boiler flues, were not large enough for the purpose for which they were designed. These flues were not omitted from the plans; on the contrary, they were set down with the same fullness of detail as the other parts of the building. It cannot therefore be said that plaintiffs did not entirely perform their contract in-this respect; they completely performed it, but they performed it negligently.

Similar considerations apply to the other branch of the case. The learned counsel would not claim that an architect is bound to spend all his time at a building which is going up *242under his professional care, so that no fraud or negligence can be committed by any of the contractors. The counsel would not contend that the architect is an insurer of the perfection of the mason work, the carpenter work, the plumbing, etc. He is bound only to exercise reasonable care, and to use reasonable powers of observation and detection in the supervision of the structure. When, therefore, it appears that the architect has made frequent visits to the building, and, in a general way has performed the duties called for by the custom of his profession, the mere fact, for instance, that inferior brick have been used in places, does not establish, as matter of law, that he has not entirely performed his contract. He might have directed at one of his visits that" portions of the plumbing work be packed in wool; upon his next return to the building the pipes in question might have been covered with brick work in the progress of the building; if he had inquired whether the wool-packing had been attended to, and had received an affirmative answer from the plumber and the bricklayer, I am of opinion that his duty as an architect, in the matter of the required protection of said pipes from the weather, would have been ended. Yet, under these very circumstances, the packing might have been intentionally or carelessly omitted, in fraud upon both architect and owner, and could it still be claimed that the architect had not fully performed his work ? The learned counsel for appellant is, in effect, asking us to hold' that the defects of the character above named establish, as matter of law, that plaintiffs have not completely performed their agreement. An architect is no more a mere overseer, or foreman, or watchman, than he is a guarantor of a flawless building; and the only question that can arise in a case where general performance of duty is shown, is whether, considering all the circumstances and peculiar facts involved, he has or has not been guilty of negligence. This is a question of fact and not of law.

Upon reconsideration, I am more firmly convinced of the correctness of our conclusions reached after the former argument. The defect in the plans which led to the construction of too small a chimney xvas something for which the plaintiffs; *243and no one else, could be held responsible. For the reasons so cogently stated in Judge Van Hoesen’s opinion, the plaintiffs were, as matter of law, guilty of negligence in falling into this grave error. In analogy with the rule adopted in ordinary contractors’ cases (*Woodward*v. Fuller, 80 N. Y. 312), we deducted from the sum due under the contract, the amount of damages caused by such negligence, and directed that plaintiffs either take judgment for the balance, or suffer an absolute reversal. As to the conceded facts of mal-construction and use of inferior materials, the referee has decided, on sufficient evidence, that the same were not properly attributable to plaintiff’s negligence, and we can discover no reason for disturbing his findings.

The order entered after the former argument must in all respects stand.

J. F. Daly and Van Hoesen, JJ., concurred.

Order accordingly.