The New York herald., 1876-01-28
Penalty Of Putting UP Build
ings in a Hurry.
IMPORTANT TO PROPERTY OWNERS
The Pacific Mail Steamship COmpanys Suit
Against William 5. King
REMARKABLE LAPSES OF MEMORY
Whisl<ey in Ludlow Street
Jail.

About two years since ono Joseph Ross engaged to
build first class four story tenement house in Long
Island City for Mr. Robert Finan. The work was done
under written contract and specifications aud the
payments amounting to $1,000 in all, were to
have been made in instruments All the instalments
paid maturity except the last which amounted
10 about 5000. Payment of this sum was refused by
Mr. Fnau, the ground that the work had not been
done according TO plans and specifications and that tho
failure OF the builder in this respect resulted in loss
20 him (Finanl amounting to over 81 5O0- suit was
brought by Ross in the Marine Court TO recover the
amount claimed by him, and hr. Finan set up in his
defence the violation of the contract by the paintih;
that the defects and omissions in the performance Of
the work the result OF collusi9n between the
builder toss) the architect Pernard scGurk, and
a sub contractor named Michael Donnely, and that he
had been damaged thereby in the amount claimed by
him on the trial before Judge Spaulding and jury
the testimony showed that tho contract and specihca-
tions had not been complied with; that the building
wac deficient In gfders the floors Of Inferior quality
Of timber and dimensions the closets unfinished, tho
plastcring done with bad materials the cellar OF in
sufficient depth and OF the walls out of plumb
The jury. in violation OF the instructions of the Judge,
a. TO what sums thCy we're allow the defendant
cOrdiBg the testimony, found verdict tor 5000 IN
favor OF plaintiff. Upon subsequent application on
behalf Of the defendant new trial was granted on the
ground that The verdict contrary TO the weight Of
evidence This second trial came on before Judge
Alker apd Jury when plaintiffs counsel after putting
Ia evidence the contract and the certificate of the
that the work had been performed according
% the contract and sPechcatons rested his case Mr.
Samuel g. Courtney. who appeared as counsel for the
dsfsndant then offered TO prove the imperfect per-
formancc o the work that at the time the architects
given the architect had knowledge OF
such 0n-pCrioTmaucc, aud that having such knowl-
edge the giving % the certificate was either the result
Of mistake conspiracy with the builder or gross fraud
on tho par' o. the architect that in fact the whole
thing was a skin Job ~ Of the witnesses termed
a. and pantl aud his associates had coluded together
o. make % such and thus commit maud on tho
owner of the building This testimony Judge Alker
ruled out holding the architects certificate TO DO con
elusive TIE performance OF tho work according TO
she contract plans aud sIccihcations-the contract
having made t slchand directed verdict In favor Of
the plaintiff lor The toll balance claimed by him.
Prom ihis decision Mr. Courtney appealed on behalf
Of hr FBan 10 The General Term, ana yesterday in
opinion written ty Chief Justice Shea the decision Of
Judgc Alkcr b. reversed and trial awarded TO
Tnan The oIuion after rocltng the foregoing facts,
says s-"iAe antwer distinctly puts this ayerment IN
issue ss 90 ihe fuishns ant completion OF the build
ing and thai sad certificate was given under
iraululeui agreement aud conspiracy between said
hcGurk iihc archlcct ana the plantn, or by gross
mistake thc by fsid McGurk, inasmuoh as he,
thc sad Ncogrk well Knew, or ought 10 have known,
that che sail building mentioned 10 the contract was
not then and ncrsr Lad been completed IN accordance
with the plans ard spcc1caions thereof ON the trial,
IN accofdancc gth ms syerment IN the answer tho
counsel Or he defence asked Tits question
Of the pla.uur, on bis cToss-examnation -:
when WAS tha vcrk, Which was 10 have been
performed under ttt contract completed, Il
conspctei un1 iheu hs lnopescd TO show that the
piaintin hnlsci knew that the certificate false.
TINS questuu art she proposal we're seVcraly objected
O. by the plaintiff and tto objections were sustained
and thc testimony excluded 10 which exceptions were
taken on bsha Do tho lecudant Othcr questions and
offers ct testimony 70 mo purpose were presented by
thc defence an ovcrrulod and excluded aud
oepiions duly iaspni and thcn motion made when
plalnin rested dismiss The complaint The defend
ant ihon. matter o defence offered 70 prove that
the condition " hc building Al the time that the archl
tcci certified that was c1maetcd was such that both
be aud the paiulf must have known H. and that Nc
GurS was guilty oi rsua ~ gitng mat cerincaie OF
that there stake 10 The TACT on hls part such
TESTIMONY was aaclaud an exception takon These
rulings OF Tho Court below erroneous To DO sure
te certificate o she arch c required by tho agree.
mont tci~eei anl 'i sac parties themselves in this
caso Be- the very svlcuct oi the completion OF the
WORK, and which suogll crttle thc paintlI, by the
general rule ~ law % pay nent IN iuL The produc
Iion OF certificate is condition precedent TO the
effective demand iur payment and tho plaintiff
bound 20 procure the certificate the absence Of legal
excuse tho contrary, and so ts procurement with
out fraud without mistake ln TACT necessary 20
IL substantial truth the defendant bound 70 pay
After Ctns numerous cases IN support Of this being
tho rule 0 law ir tAs the opinion continues -
"rhc dcyauons ron fhe fir application Of THIS rule
are wherein au done. oontract made
under mlstske OF lsnorancc ~ material
fact, and icr positive ~ Constructive fraud, and
Equity Juristfudcrcr. section is0l Ia this phase Of
thc present contention rcai a. 90 the rejecting
mcAdan' ~ assosste N bearing ,so .reument on
appoai. has called s'teuiiou 90 th6 opinion la Kemp
Rosa u Gaurdi keiort -ttl where thc wac as
h0re. put ca ihc grouId of fraud A builder hy bis
contract boubd himself 90 ABIDE ty thc decision ana
ceuhcaie Of archteci as 90 lhe amoants % be paid
for tho wofk. not srowans fhai ihc architect hal
given an assurance thai ihe of fhc building should
not cKcced ssccilol amount although he refused 10
guarantee a. tte count ill nai CONSIDER The DECISION
Under such cfCumsiarcrf ui thc archiect hinding
aud vacated a. becarsc iAe duties which hc hal
underakeu @ periprm wcro Y jgls.al character
both parties who have sutmuftd to he bound hy tho
decision % ano'hof ihtre u cr,uuviancs ID th6 sta.
icnded a. pfli lcf si-l COZ o. m 81 tle evidence ar
that crcuusisnef 49, fogl.r, ine niefitfsnrc 81
the case ~ Nrnes ft helsA same spiunis, Toe
wherein thr teCfu ri ar afctiirri a surNeFUf are
heio % b. atai vheI i.ry GOD iulalt'aiy made AID
that court nA ~ relieve tfslnsi iben. tostFtr
they may tg a thsf rfccis bui declares that
whenever either acts Ir o. sad Ial Clararisr uu.
fsifly o. partially, .c-ri 49, rslefe against the
that ofau afbtfaiiCt 1e III ar in a. ffffrnirri ty
Jury, and csurq lt te,ft tl ite corri 'issf the
can b. safhsrcl fir1a ~ slfff Va its ctuss ttc
sss.,,oo eassa .et '.o.t = ,lrst = slol 90
tact Purlof,ai ty 80 ssfl.sit sssit.an 3 ieu.sd
~ the tsi.n naa1t ata hs offftt tetiaaety ou t1s
tho csrtceaie "a fsn e. '5lal ails s.itt "a ~.
ersf, By ngaefftff rFtia.l tafrst tsi lhIf sfist.
,s.,en y 80 =, .,,ai..' & ... ,,..t q uus .a ts
a. 40 rrsuH Constructive trsn1 t1fk fasl.
@ouy = ssei 81 .T'- .a.es' Z a. ysrsrig
shsrs ,hs ~, = i,rss 80. ~ ,n ,6. o.g,,.,s ~.
conrlstsd ara f.stfl falsfart - n - fIr..f -
the terms " ne alffruett ttfr 81 aflhtefl = ~
Nithout poWfr Al rft tns tsftted ia fat
contrary ~ ils Nrfh ttt an afffNf1 ehfIa aafG "a
an iniury lecri al Ffuf ir tte rftsfri east ihs
defeodart tti uftF rsff tLs NGrf prove lnai fEn
certl1cair 80 nri ftt elel tstt sna II ttf Iaet
V proved stts ,hs ssri,ts.is ~ ,orcias'rs - y
ths rights of ne leffrtllt ltsf lara 80 cf lai q
Ogeu. under tla iaHua 0e1fa ant E.fhIn SO Fgla.
cipis Of wyckof W nsfrfl q Nss Ycrs RaIaft. itl
Where the tesf weGy ID rtt ..faf tat fusfrfthia "a
more than cre O. rIru tfrE lE1 .raie .s rtrr u
alre tut roe whsFs acre fhs "a e rIalale1 - ~
the coatrafy o. tLe fistem a. n its riassis rhs
1udEmeat a. 1tt us fevsraft aa4 see iria sfa1ied
THE PACIFIC MAIL SUIT.
Tue sat o. tts ras.rr MAJ slssntar Cofaftnv