Appellate Terms of the Supreme Court of New York, 1913

Shuman v. George Backer Const. Co.

Appellate Terms of the Supreme Court of New York · Decided November 13, 1913 · Bijur

144 N.Y.S. 9 (New York Supplement)

Counsel

Arnstein, Levy & Pfeiffer, of New York City (Samuel Levy and Reuben Rodecker, both of New York City, of counsel), for appellant., Edward Herrmann, of New York City, for respondent.

Opinion of the Court

BIJUR, J.

Plaintiff sued to recover payments due. for work done under a “uniform contract.” The complaint failed to allege any excuse for nonproduction of the architect’s certificate, or waiver of its production; such certificate being made, in the contract, a condition precedent to payment. Plaintiff, nevertheless, succeeded in introducing, over defendant’s repeated objection, evidence that the archi*10tect seldom came to the building, and that previous payments had been made to him without the production of the architect’s certificate.

On the authority of Weeks v. O’Brien, 141 N. Y. 199, 36 N. E. 185, judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

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