Beck v. New York Building Loan Banking Co. , 85 N.Y.S. 323 ( 1903 )

MacLEAN, J.

The plaintiff claimed for work, labor, and materials under contracts with the defendant, alleged and testified to performance, but failed to allege or prove a certificate, or its refusal, by the supervising architect, as a prerequisite to recovery. His complaint was therefore dismissed, and properly, for the evidence does not disclose notice of election by the defendant to complete, excusing the absence of certificate, but, at best, an attempt by the plaintiff to introduce such notice, apparently in substantiation of proof of extra services, also unpleaded. The objection to its reception was properly sustained as not within the plaintiff’s cause, and, although pleaded by the defendant in its counterclaim, it was denied by the reply, and so, as notice, not part of the plaintiff’s case or proof. Had the defendant introduced such evidence as part of its case, then it might well be urged in extenuation of the failure by the plaintiff to produce the certificate, as no longer required, and as proof of the fact that the plaintiff had been hindered in the completion of the work. That was not this case, and so not governed by the decision in Smith v. Wetmore, 167 N. Y. 234, 60 N. E. 419. The judgment of the court below should therefore be affirmed, with costs.

Judgment affirmed, with costs. All concur.