#### John H. Byron, Respondent, *against*Edward T. Bell *et al.,*as Administrators, etc., of Henry R. Low, Deceased, Appellants.

(Decided June 2d, 1890).

The provision in a contract for railroad construction that the work shall be executed and performed under the direction of the chief engineer or his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed shall be determined, does not prevent an appeal to the courts in case of fraudulent or unjust conduct of the engineer; and in such case testimony of other experts is allowable.

Appeal from a judgment of this court entered upon the verdict of a jury.

The action was brought to recover a balance alleged to be due and unpaid for work done under a contract between plaintiff and defendants’ intestate, and damages for loss of profits on work covered by the contract which plaintiff alleged he was prevented from doing by the intestate.

Defendants’ intestate, having entered into a contract with the New York and Scranton Construction Company for the construction ‘of a railroad, sublet a portion of the work to. plaintiff. Their contract contained these provisions :

“ The work shall be executed and performed under the direction of the chief engineer (or his assistant), by whose measurements and calculations the quantities and amounts of *199the several kinds of work performed under this contract shall be determined, and who shall have full power to reject and condemn all work or materials, which, in his opinion, do not fully conform to the spirit of this agreement, and to decide every question that may or can arise between the parties relative to the execution of the work, and his determination shall be final and binding upon both parties.”

“ It is further agreed that payments shall be made monthly on or before the fifteenth day of eaeli month, as the work progresses, on the certificate of the chief engineer, based upon his current estimates’ of the amount of work done,-material furnished, calculated at relative prices. And it is also further mutually agreed, that from each and every current estimate there shall be retained ten per cent, of the amount of such estimate, which ten per cent, is to be forfeited by the party of the first part to the party of the second part, in case the work is not fully completed by the time and in the manner herein provided for, and which is mutually agreed upon as liquidated damages for the non-performance by the party of the first part of any of the undertakings on his part herein contained. But, in case of the full completion of the said work by the party of the first part, then, and upon the final estimate therefor by the said chief engineer, the said party of the second part agrees to pay, within ten- days, to the party of the first part, the full amount then due, including the reserve of ten per cent.”

The contract included certain mason work ata place known as Broadhead Creek. Plaintiff’s evidence showed that, during the progress of the work, the Construction Company, without the consent of plaintiff, made an arrangement with defendant by which the Broadhead Creek work was taken from the contract, and plaintiff was not permitted to perform the same. Plaintiff continued the work and completed it, save the portion so withdrawn.

The action was originally brought against the intestate during his lifetime, but on his decease after the first trial thereof, his administrators were substituted as defendants.

*200On the first trial, plaintiff recovered a judgment, which was reversed on appeal to the Court of Appeals, that court holding that the certificate of the chief engineer was a condition precedent to a recovery by plaintiff, and that his evidence did not show that he had ever demanded it from the chief engineer (see 109 N. Y. 291).

At the second trial, plaintiff testified positively (as referred to in the opinion at folios 168 to 172 of the case' on appeal), that he had demanded the final estimate from the chief engineer before the bringing of the action, and had repeated such demand once a week for two months. Defendants then read the cross-examination of plaintiff on the former trial, wherein he had stated that he had made repeated inquiry of the chief engineer whether the estimates and measurements of the division engineers had been returned to the chief engineer, so that he could make the final estimate.

Defendants also read the testimony given by their intestate on the former trial, which, after a statement by him as to the whole estimate of the amount due plaintiff under his contract, and the amount which he had been paid, was as follows (as referred to in the opinion at folios 520, 521, 522 of the case on appeal): “ *Question.*Now what was included in that whole estimate? *Answer.*Everything up to the time of this suit. Subsequently the statement by Mr. Truesdell to the chief engineer increased the N. J. Division $2,046.83. *Question.*That is the statement that it has been said here was furnished to Mr. Wood some time in the month of March ? *Answer.*Yes. It increased the amount, with Mr. Truesdell’s 'estimate to Mr. Byron, of the N. J. Division—increased the amount that would apparently be due to Mr. Byron, $2,046.83.” And, continuing his answer, he proceeded to state at length numerous deductions which should be made from that amount, with computations of the several amounts and of the total of such deductions, and of the balance due to plaintiff. To all this part of the answer plaintiff objected, as not responsive, and the objection was sustained by the court and that part of the answer was stricken out.

*201The jury found a verdict for plaintiff for $7,872.20. A motion by defendants for a new trial was denied and judgment for plaintiff was entered on the verdict. From the judgment and the order denying their motion for a new trial, defendants appealed.

*W. J.*Grroo, for appellants.

*L. Laflin*Kellogg, for respondent.

Larrbmore, Ch. J.

This case has been once tried and appealed to the Court of Appeals. The report of it in that court *(Byron*v. *Low,*109 N. Y. 291) contains a statement of the facts. The appellants claim that on this new trial the objection which led to the reversal before has not been obviated. But I am of opinion that the testimony of plaintiff at folios 168 to 172 inclusive makes out *aprima facie*case of a demand for the certificate from the chief engineer, as required by the contract. Plaintiff’s direct testimony on the former trial on this point is not given, but we scarcely think appellants’ contention, that it was substantially the same as on the present trial, can be correct. His former cross-examination, which was read on this trial, may all stand consistently enough with the direct evidence of a demand for the certificate itself which he has now given. There is other evidence from which the jury might have and did conclude that the certificate had been unreasonably refused. The case would, therefore, be analogous to the unwarrantable withholding by an architect from a contractor of a certificate of the completion of his contract. The contractor rqust, as a condition precedent to recovery at law, either produce, the architect’s certificate, or satisfactorily account for its absence. Similarly, in the case at bar, facts were shown from which the jury might infer that the engineer’s certificate was kept back without just cause for an unreasonable length of time. Even under the decision of the court of last resort, therefore, we think the jury were authorized to find that the condition precedent had been complied with, and that plaintiff was not bound to wait longer before *202proceeding to enforce his rights, especially in view of the fact that defendant was about to depart from the country.

Many of the exceptions to rulings upon the trial we do not deem of any serious consequence. The contract provided that the work should be executed and performed under' the direction of the chief engineer or his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed should be determined. But certainly that could not preclude the testimony of other experts in a suit to enforce plaintiff’s rights. We do not think the contract obliged plaintiff to submit to the chief engineer’s decision and allowance without the right of ap. peal to the court, if the former claimed that he was fraudulently or unjustly dealt with. And if under any circumstances he was entitled to sue, it goes without saving he had the right to call witnesses, such as the assistant engineers Trues dell and Coons, to prove the nature, extent, and value of the work. This exception was not well taken.

Considerable evidence was excepted to because it was alleged to relate to transactions with the original defendant now deceased, but none of such exceptions seem valid. Many of the answers complained of do not as matter of fact relate either to “conversations” or “transactions” with the deceased, and such of tliem as may seem impliedly to do so come within the exception to the rule, made a part of the rule itself by section 829 of the Code. The testimony of the deceased defendant on the former trial was read on behalf of the defense here, and plaintiff, therefore, became entitled to give his version orally of the matters therein referred to.

The rulings as to the testimony o.f said deceased, excluding a considerable portion of it, seem from the printed record rather strict, but they were within the discretion of the trial judge. In the ruling especially complained of, at folios 520, 521, 522, much of the long answer was clearly irresponsive, as the court held, and, moreover, it contained conclusions and calculations.

Nevertheless, we are constrained to hold that the exclusion *203of certain questions put to the witness Daniel H. Wood constituted error, which will require a reversal. The plaintiff had testified as to the amount and value of the work alleged to have been done by him under the contract, from a statement he had made, and the same was offered and received in evidence without objection as to that method of proof. (Exhibit J.) When Mr. Wood went on the stand this paper was shown to him, and he was asked to state what deductions should be made from the amounts. This question was objected to and excluded. The following question was also put, with a similar ruling:

“ Q.—What proportion of the 365 51-100 yards of rip-rap wall that Byron has estimated at a dollar and a half a yard —what proportion of it should be at a dollar a yard ? ”

This question was put to Mr. Wood later on and excluded :

“ Q.—From what you saw there on the ground at Indian Ladder Bluff; what amount of rock in your opinion was taken out outside of the slopes as provided for in the contract and specifications ? ” The contract provided that the plaintiff should be paid “ for rock cut at Indian Ladder Bluff one dollar and twenty-five cents per cubic yard,” and a portion of the judgment rendered depends upon the jury’s estimate of how much of such work was actually cut. It must be remembered that the contract did not specify a gross sum for plaintiff’s compensation, but merely rates for different kinds of work; and, therefore, both from the very nature of the agreement, and because directly raised by the answer, the amounts and kinds of work actually performed were at issue. This witness, Mr. Wood, was not only the Chief Engineer of The New York '& Scranton Construction Company, but by the contract itself he was “appointed a common arbiter, to whom all and every question of difference between the parties, growing out of this contract, shall be referred, and whose decision shall be final and binding upon both parties.” Certainly he was a competent expert upon all these matters upon which his testimony was excluded, and such testimony would have been very relevant for the defense. It was as seri*204ous error not to allow him to testify as to the facts, as it would have been if the court under defendants’ objections had rejected the evidence of the assistant engineers Truesdell and Coons. Defendants were in effect deprived of the evidence of their principal witness, on a most important branch of the controversy. I cannot discover that this error was in any manner cured; and there is no alternative but to order a new trial.

Bookstaver, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.