Bowery National Bank v. Mayor of New York

Davis, P. J.:

It appears on the retrial of this case, that no certificate of the water purveyor was given, and that, when that officer was called upon for one, he declined to give it, saying “ that, owing to some injunction that had been got on the work by the property owners, he was debarred from the right of giving it.” This court held, on the former appeal, that the certificate of that officer was a condition precedent to the obligation of - the defendants to pay. It might perhaps be held, that what took place in the water purveyor’s office in respect to the completion of the work, as testified to by the clerk of the water purveyor, was equivalent to the certificate; but the plaintiff showed by another witness (Daniel Owen), that that testimony was incorrect. Owen was the general superintendent of the contracting company, and on their behalf called for the certificate of the water purveyor; and he says that the company had got the certificate the year before on every work they had done, and adds : “ I called for it naturally to get a settlement; that appeared to be the difficulty. We had done some other work, and he had given certificates for it.” This shows that the entry in the book and the memorandum sent to the contract clerk, etc., were not understood by either the company or the purveyor, to be the certificate required by the contract. But it is insisted that the excuse given by the purveyor, was an unreasonable one. The injunction order restrained the defendants, their officers and servants, from further proceeding under an ordinance, passed, etc., for paving One Hundred and Twenty-eighth street, “ to lay, and from confirming any assessment therefor, for paving said so called street, etc., and from doing any act or thing toward making or confirming such assessment, or making the same a lien on any property,” etc. The water purveyor was an officer and servant of the defendants, and, it seems, had notice of this injunction, and supposed himself bound to regard it. His official action was a step toward making or confirming such assessment, because the assessment could not be laid till the work was completed, and his certificate was part of the evidence to show such completion to the assessors. His refusal was not illegal or unreasonable, we think, within the meaning of the rule which excuses the performance of such a condition precedent.

The stipulation of the contract as to the time of payment, to wit: that the defendants should pay “ on the confirmation of the assessment to be laid for said work ” (which, in connection with the subsequent provisions of the contract, must be construed to apply to the balance remaining unpaid after the payment of the monthly installments of seventy per cent), has not in our judgment been obviated. It is undisputed that the assessment had not been laid when this suit was commenced, and of course it had not been confirmed. This suit appears to have been commenced in March, 1873. The suit and injunction to restrain the officers from making and confirming the assessment was then pending. It does not appear to have been collusive, nor to have been delayed by defendants for the purpose of preventing plaintiffs from receiving their money. We see no reason to change the views expressed on this point in the former opinion. The event had not occurred upon which the money became due and payable, and the delay in its occurrence is not shown to have been caused by the collusion, negligence or fraud of the defendants.

The action was prematurely brought, and the judgment must be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.