Mittnacht v. Wolf , 6 N.Y. St. Rep. 44 ( 1886 )

Dykman, J.

The plaintiff tendered to the defendant and others a proposition in writing to furnish materials and erect iron balconies to connect their houses according to the requirements of the fire and_building department, with pattern to suit in fancy iron casting, and fancy iron bracket complete with two good coats of paint.

The offer was accepted and the balconies were constructed and this action is brought for the recovery of the contract price. The defense was a failure to perform the contract, and the trial judge directed a verdict for the defendant.

These balconies were intended for fire escapes, and as they were subject to the examination of the inspector of buildings it become important to secure their construction in accordance with the requirements of the building department, and the plaintiff undertook to meet and satisfy the rules and specifications of that branch of the city government relating to that subject.

At the close of the testimony it appeared plainly that the plaintiff had failed in the performance of his contract. The work was condemned by the department, and the defendant was obliged to take it down to avoid a public prosecution.

There could be no recovery by the plaintiff under lfis contract with the defendant until he had proved the performance of the condition precedent to erect the balconies in accordance with the requirements of the building department, and as he failed to make such proof, he was not entitled to a verdict even if the jury had made one for him. Under such circumstances it was proper to direct a verdict for the defendant.

The judgment should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.