Farber v. Essie Const. Co.

Defendant appellant moves for an order setting aside an order of this court denying its motion for a reargument of the appeal herein, or, in the alternative, for leave to appeal to the Appellate Division, and asks for the same relief demanded upon the original motion for reargument. The action was to recover damages for the wrongful detention by defendant of certain tools and appliances used in the erection of a building by the Farber Contracting Company under a contract made by that company with the defendant, which contract was also signed by the plaintiff, “Isaac O. Farber, Treas.”

[1] The evidence was sufficient to authorize the submission to the jury of the questions of ownership and demand by the plaintiff and wrongful detention on the part of the defendant. If there was any defect of proof with respect to- any of these questions, the defendant waived it by failure at the close of the entire case to move for the dismissal of the complaint or the direction of a verdict. Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27.

[2] The issues litigated by the parties were submitted by the trial judge to the jury in a charge to which only one exception was taken by the defendant appellant. This exception was on tire assumption that the judge had charged the jury that the ownership of the chattels by the plaintiff was not in dispute; but no such charge was made, and if there was anything in the charge to that effect it was cured by what was said by the judge at the time the exception was taken.

The court charged the jury without exception that, in view of the terms of the building contract, the plaintiff’s rights against the defendant were no greater than the rights of the Farber Contracting Company ; and he further said:

“Under the proof in this case there is conversion as against Farber only if under the contract and under the terras thereof there was a conversion of chattels tantamount to a conversion as against the Farber Company.”

And:

“I charge you that, if you find under the evidence in this case that that is what took place, if you find that the Farber Company abandoned its contract, threw it up, and quit the job, then, under the evidence in this case, the Essie Construction Company had the right under its contract with the Farber Contracting Company to take possession of these materials, and use them, and finish the job with them.”

It is clear, therefore, that to prove a defense to the action the defendant was bound to show that under the provisions of the contract it had a right to take possession of the property in question as against the company.

[3] Defendant relies upon a certificate made by the architect, pursuant, as the defendant claims, to article V of the contract, as authorizing the defendant to take possession of the chattels in question. But a reading of the certificate in the light of article V shows that that certificate gave defendant no right to the possession of the property. .

As far as material to the question under consideration, article V provides for two contingencies: (1) The failure of the contractor to supply, among other things, a sufficiency of skilled workmen or *785materials, certified to by the architect, in which event the owner, upon three days’ written notice to the contractor, is authorized to provide such labor or materials and deduct the cost from any amount to become due the contractor under the contract; (2) such failure on the part of the contractor and a certificate by the architect that the failure is sufficient ground for the termination of the contract by the owner, in which event (and in which event only) the owner is given the right to take possession of the materials, tools, and appliances on the job.

In this case there is no certificate by the architect that the neglect or failure of the contractor to furnish the workmen or materials was sufficient ground for the owner to terminate the contract, and in ' the absence of such a certificate there is no right in the defendant to the possession of the chattels described in the complaint. See Midtown Contracting Co. v. Goldsticker, 165 App. Div. 264, 150 N. Y. Supp. 809.

The motion must be denied. All concur.