#### The Vacuum Cleaner Company, Appellant, *v.*Broadway Cortlandt Company, and Hedden Construction Company, Respondents.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Contracts — certificate of architect as to completion of work — acceptance— waiver of architect’s certificate.

Where a complaint, after alleging a contract with defendants to install a vacuum cleaner plant in a certain building, and that plaintiff should receive final payment upon the issuance of the architect’s certificate that the work had . been "completed to his satisfaction, alleges completion of the • work, that thereafter the parties agreed to make a test to ascertain whether the same fulfilled the requirements of the agreement, and such test was made and the plant *“*duly complied with all the terms of said contract,” that plaintiff then demanded a certificate from the architect, which was refused, that it then demanded payment from defendants, who refused because of the absence of the architect’s certificate, and also because the test showed that the plant had not fulfilled the requirements of the contract; and the complaint further alleges that since defendants’ refusal to pay they have used the plant and have accepted the same, there is a sufficient allegation of acceptance of the plant to constitute a waiver by defendants of the architect’s certificate as a prerequisite to payment.

Appeal by the plaintiff from a judgment of the Oity Court of the city of blew York, dismissing the complaint herein for failure to state a cause of action.

William F. Clare (Frederick A. Gill, on the brief), for appellant.

Bowers & Sands (George M. Burditt, of counsel), for respondents.

Bijur, J.

The complaint alleges, in substance, that the plaintiff contracted with defendants to install a vacuum cleaner plant in a certain building, and that it should receive final payment, upon the issuance by the architect of *175a certificate that the work had been completed to his satisfaction. It then alleges that it has completed the work; that thereafter the parties agreed to make a test to ascertain whether the same fulfilled the requirement of the agreement, and such test was made and the plant “ duly complied with all the terms of the said contract;” that it then demanded the certificate from the architect, which was refused; that it then demanded payment from the defendants, who refused, stating as their reason, the absence of the certificate and also that the test showed that the plant had not fulfilled the requirements of said contract. There is a further allegation that since defendants’ refusal to pay they have used the plant for the purpose for which it was intended continuously, and have accepted the same.

The allegation of complete performance of the contract, which is clearly made by the pleader, if proved, makes out a case of unreasonable refusal on the part of the architect to furnish the certificate, and, therefore, excuses its production as a condition precedent to payment. Ross v. City of New York, 85 App. Div. 611, 612; Bowery Savings Bank v. Mayor, 63 N. Y. 336.

Judged by the pleading alone, there seems also to be a sufficient allegation of acceptance of the plant (the character of which is not disclosed by the complaint) to constitute a waiver by defendants of the issuance of the certificate as a prerequisite to payment. See Smith v. Alker, 102 N. Y. 87; Duell v. McCraw, 86 Hun, 331; Tilden v. Buffalo Office-Bldg. Co., 27 App. Div. 510.

Seabury and Guy, JJ., concur.

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