#### Charles Kausen, Respondent, *v.*The Leonhardt Realty Co., Appellant.

(Supreme Court, Appellate Term, First Department,

March, 1913.)

Contracts — building — action to recover for work done under — architect’s certificate.

Where, in an action to recover for work done under a contract for the installation of a steam heating system in certain buildings, the evidence as to the work is so overwhelming against the plaintiff who did not call his own workmen to support his testimony, a new trial will be ordered for plaintiff’s failure to prove that the work was either completed or properly done.

Where plaintiff, who sued on a *quantum meruit,*agreed by the contract to complete the work according to the plans and specifications in a good workmanlike and substantial manner to the satisfaction and under the direction of the owner of the buildings, who agreed to make payments provided the architect’s signature could be obtained, and a certificate obtained from the architect on a mere statement of plaintiff was revoked by the architect, a judgment in plaintiff’s favor will be reversed.

*622Appeal by defendant from a judgment of the Municipal Court of the city of blew York, borough of the Bronx, second district) rendered in favor of the plaintiff after a trial by the court without a jury.

Kurzman & Frankenheimer (Ferdinand Kurzman and Walter Frank, of counsel), for appellant.

Simon T. Stern, for respondent.

Gerard, J.

The defendant owned two flat-houses on One Hundred and Twenty-eighth street, and, being desirous of repairing" the same, entered into several contracts looking to the repair of the buildings. Among others it entered into a contract with the plaintiff, by which the plaintiff agreed to erect a complete steam heating system according to plans and specifications for the sum of $2,500. The specifications, among other things, contained the following clause: “Remove heater in cellar, also all the present radiators and risers and all other materials in connection with present heating plant. Any of the present radiators and risers which may be of proper size and are in good condition may be used in connection with the new work.” Risers are the large iron pipes running perpendicularly from the cellar and supplying steam to the house from the boiler to the radiators on each floor. There were twenty-four risers in all; the plaintiff removed only sixteen. He did not remove the other eight risers at all, but let them stand. He testifies that he made a test of them and found that they were in working order.

While this court is not inclined as a rule to disturb a verdict rendered on conflicting evidence, the evidence as to the work here is so overwhelming against the plaintiff, who did not even call his own working-men to support him, that a new trial should be ordered because plaintiff did not, in our view, prove that the work was either completed or properly done.

There remains the question of the giving of an architect’s *623certificate to the plaintiff. The plaintiff did not sue on the contract in question, but sued on a *quantum meruit,*as is conceded by plaintiff.

The provisions of the contract with relation to the certificate are as follows: “ The contractor agrees to complete the steam heating system agreeably to the drawings and specifications made by Horenburger & Bardes, architects, in a good workmanlike and substantial manner, to the satisfaction and under the direction of the party of the first part to be testified by a writing or certificate under the band of said architects,” and the owner agreed to make a payment on account of this work when all the pipes had been installed in both houses, risers, branches and floor plates, of $400 (then follows description relating to subsequent payments), “provided that in each of such cases a certificate shall be obtained and signed by said1 architects.”

It is to be noted that this particular contract does not make the giving of the architect’s • certificate conclusive beV 'tween the parties, or make the architect the sole arbiter. *'*

In the recent case of Mercantile Trust Co. v. Hensey, 205 U. S. 298, a contract, practically the same as the one at bar, was under construction, and it was there held that the final certificate of the architect was not conclusive upon the owner, the court making the distinction that the contract omitted any provision that the certificate- should be final and conclusive between the parties.

In Oberlies v. Bullinger, 75 Hun, 248, a contractor sued without obtaining an architect’s certificate and the contract, there stated: “ payments to be made in accordance with the architect’s certificates” and the court held that the certificate of the architect was not necessary, and said,.at p. 253: “ On the other hand, by a similar course of reasoning, we arrive at the conclusion that no final certificate of the architect could have the effect to deprive the defendant of either a complete or a partial defense to an action for the balance of the contract price.” -

In any event, the certificate in the case at bar-was obtained from the architect on a mere statement made to him by the plaintiff and was revoked by the architect.

*624' For these reasons the judgment appealed from should be reversed and a new trial ordered with costs to appellant to abide the event.

Seabuky and Bijub, JJ., concur:

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