#### PRESTON v. CITY OF SYRACUSE.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Building Contract—Interpretation.

After the construction of a building had been abandoned, the owner made a contract for its completion by anomer contractor according to specifications, a clause of which required the contractor, as the building progressed, to protect the finished work from injury. *Held,*that the contractor was not required to protect the work done by his predecessor from injury from frost between the time the contract was made and when the architect permitted him to commence work, where he offered to commence work when the. contract was made.

2. Same—Waiver on Conditions.

A building contract provided that the value of all changes in the work should be determined by the architect, and that, if any dispute arose as to his determination, it should be submitted to arbitration. The contractor, in August, presented a bill to the architect for extra work, who retained it without objection till December, when an action for the extra work was brought. *Eeld,*that defendant will be presumed to have waived the condition as to arbitration, where, on the motion for a non-suit, defendant did not specifically urge as a ground thereof that the suit was premature, or raise that question at the close of the case, or ask that the question of waiver be submitted to the jury.

Appeal from circuit court, Onondaga county.

Action by Patrick Preston against the city of Syracuse for extra work on a building. Judgment was rendered for plaintiff on a verdict directed in his favor, and defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.

Charles E. Ide, for appellant.

M. E. Driscoll, for respondent.

MERWIN, J.

Prior to December, 1892, the board of education of defendant entered into a contract with Isley & Dixon for the construction of a brick schoolhouse on Montgomery street. The building was partially constructed, and then, in December, 1892, the contractors abandoned the contract. On the 31st December, 1892, the board of education entered into a contract with the plaintiff to complete the mason work of the building, in accordance with the plans and specifications of the architect, for a certain sum. In the specifications was the following clause: “Note. Building at present up to first-floor joists. All outside brick walls to be taken down to water *717table.” There was also the following clause: “Particular care must be taken of all the finished work as the building progresses, which work must be covered up, and thoroughly protected from injury or defacement, during the erection and completion of the building.” The time at which the work, under the plaintiff’s contract, should be commenced, was not specified in the contract. Soon after the contract was made, the plaintiff applied to the architect for leave to gd on, but by reason of the weather, and the impracticability of then ascertaining to what extent the walls already up might be injured by the frost, it was deemed best to postpone the work until spring, and the work was not commenced until the latter part of March. It was then discovered that it was necessary to take down, to some extent, the inside walls, and rebuild them, before the plaintiff could proceed to the completion of the building from the point to where it was completed at the time the contract was entered into. It was shown that such inside walls had become defective, by reason of the action of water and frost during the winter. When the situation was ascertained, the plaintiff was directed by the board of education and by the architect to take down and rebuild the defective inside walls. This he did, and in this action seeks to recover the expense, in labor and materials, of doing it. He showed the expense to be $600.50, and that no part had been paid. On the part of the defendant, the value of the work and materials was shown to be $524.40, and for this sum and interest the verdict was ordered. The defendant asked to go to the jury “on the question as to whether the injury to these walls resulted from the failure upon the part of Mr. Preston to protect the work then completed, at the time he took the contract, which was the 31st December.” This the court refused, on the ground that the plaintiff was under no obligation, under the specifications or the-contract, to protect the work then constructed. The exception by the defendant to this raises the main question in the case. It was quite apparent, as the court said, that the defective condition of the inside walls was due to the unprotected condition of the work during the winter. The claim of the defendant is, in effect, that it was the duty of the plaintiff, immediately upon the execution of his contract, to investigate and see if the work already done was properly protected, and to remedy any defect in that line. The contract did not impose that duty on him. The clause as to care of finished work related to his own work to be done under the contract, and not to what had been previously done by some one else. The architect, called as a witness for the defendant, testified that:

> “When he [plaintiff:] took that contract, he was to tear down the outside wail of the building, from the first-floor joists down to the water table, and relay it. Everything else was ail in good shape, up to that point, but the outside was not laid right. We put it in the specifications that the outside wall would have to be taken down, to the water table, and relaid. In other words, the other walls looked all right up to that time. Q. That was the understanding when you made the contract? A. Yes, sir.”

Nothing seems to have been said to plaintiff about protecting the work of his predecessor. The architect had as good or better means than the plaintiff had for knowing whether the walls were not ade*718quately protected. The court did not, we think, err in holding that the plaintiff was not responsible for the neglect of the original contractor, or of the architect, in not having the walls properly protected.

Clearly, the work in question was outside of the work for which the price named in the contract was to be paid. The defendant, however, claims that the plaintiff cannot recover, because the value of the extra work was not, before suit, determined by the architect, or by arbitrators, in case of dispute as to the value, in accordance with the provisions of the contract on the subject of extra work. The clause of the contract on which this claim is based, provides that, in case changes are ordered—

> “The value of such changes to be mutually agreed on in writing between the architects and contractor beforehand. In default of such agreement in writing, the fair value of the same, as determined by the architects, shall be added to or deducted from the contract price, as the case may be; but should any dispute arise respecting the value, as so determined, then the same shall be valued by two competent persons,—one employed by the proprietor, and the other by the contractor,—and these two shall have the power to name an umpire, whose decision shall be binding on all parties.”

The architect himself testifies that it was practically impossible to estimate beforehand how much the cost or value of the change in question would be. According to the evidence of the plaintiff, which is not denied, he, at the request of the architect, kept track of the material and labor furnished for the particular work in question, and when the work was done he made out a bill of it, and delivered it to the architect in August. This suit was commenced in December. There is no evidence that the amount was disputed, but the position of the defendant, or those representing it, was that they were not liable at all. The plaintiff may well have believed that he had done all that was required in regard to fixing the amount. Besides, at the trial, at the close of the evidence, the only question then raised was that the plaintiff could not recover by reason of his neglect to protect the walls from the date of his contract. On the motion for nonsuit, the question that the amount had not been properly ascertained was not specifically raised. We are inclined to the opinion that under the ruling in the case of Seward v. City of Rochester, 109 N. Y. 164, 16 N. E. 348, the obtaining of an adjustment of the value by the architect or by arbitration was not a condition precedent to a right of action. Assume, however, it was. There is evidence tending to show a waiver. So that the motion for a nonsuit was properly denied, and as, at the close of the case, no point was made as to this, and no request to go to the jury on the subject, the defendant will be deemed to have assented to the disposition by the court- of any question that may have existed on the subject. We find no good reason for reversing the judgment, and it should be affirmed.

Judgment affirmed, with costs. All concur.