author: G-eobg-e C. Hall, Referee. Pee Curiam.

text:
    DE WITT C. WEEKS and FRANCIS M. WEEKS v. WILLIAM McCARTY LITTLE, Individually, and as Executor of the Will of AUGUSTA M. LITTLE, Deceased, AUSTIN M. LITTLE, GEORGE H. MAYHEW, GEORGE RIKER, ALBERT SPITZ, and RAYMOND HENSCHEL.

      Plaintiffs and defendants Little appeal.

    I. BUILDING! CONTRACT.
    1. Arbitration. Stipulation in contract for arbitration in case of dispute as to true value of extra work or of work omitted, efEect of.
    (a) Ousts a court of law or of equity of all jurisdiction over the matter falling within the stipulation.
    1. Not within such stipulation. Disputes as to whether certain work was extra work or not, and as to whether extra work done at agreed prices was properly done or not, do not fall within the stipulation.
    2. Architect’s Certificate.

      (a) Conclusion in the absence of fraud or mistake.

    1. The contract contained a covenant on the part of the builder, “that he would well and sufficiently erect and finish . . . agreeably to the drawings and specifications made by A. G-., architect, and signed by the parties and hereunto annexed, within the terms aforesaid, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of the said A. Gr., to be testified by a writing or certificate under the hand of the said A. Gr.” It also contained a covenant on part of the owner to make ten several payments at ten different stages of the work, and the balance of the contract price when the work was completed according to the plans and specifications aforesaid. Provided, that in each of said cases a certificate should be obtained and signed by the said A. Gr., architect, and not .otherwise. The contract also contained this clause, “Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the architect,” and his decision should be final and conclusive.
    HELD

      A certificate by A. Gr. that the last payment was due, the terms of the contract having in his judgment been fully complica with, was, in the absence of fraud or mistake, final and, conclusive.

    1. Conclusiveness not affected.

      (a) By its appearing on the face of the certificate, that some of the icorh, being the last coat of paint, in some of the rooms was not done, the certificate recommending that a certain sum be withheld from the last payment with which to pay for such work whenever it might be done; it also appearing by the certificate that the reason why such painting had not been done, was that, the rooms in which it was to be done were, at the time it was to be done, occupied by tenants, and it being proved that the contractor was ready to do it, but it was thought best not to do it until, the tenants were out or were ready to have it done, and therefore it was omitted, and the cost of it deducted to accommodate all parties.
    (5) By a letter subsequently written by the architect stating that the certificate did not conclude, and was not intended to conclude, any just rebate or offsets which might be shown to exist in the work.
    2. Mistake not pbedicable on these facts. During a period of over a month A. Q-. made out a list of things to be done; also procured a list to be made by the janitor of the building, delivered that to the builders; made a thorough examination of the building, once alone and once with another architect; also had another architect and an experienced builder examine it; wrote to the owner’s attorney, requesting a list of what he and his client deemed shortcomings, to which no reply was received; and thereafter delivered the certificate to the builder with a request to withhold it a few days, and finally issued it.
    3. Fraud.

      (а) Sinkage of building. If serious, as in the case at bar, and due to acts and omissions of the builder in violation of the contract, would be conclusive evidence that the certificate of due performance had been fraudulently obtained.
    BUT
    If due to the character of the plan itself and the weakness of the construction in accordance with it, it will not affect the conclusiveness of the certificate.
    (б) Finish of woodwork, carelessness and roughness in. Although it is to a certain extent rough and carelessly done and generally of quite an ordinary character, and a portion of it admitted to be improperly finished, yet the question is not whether the architect erred in. judgment, but whether the work is so poor that it of itself proves that the architect gave the certificate-knowing that he violated his trust in so doing.
    1. In the case at bar the finish was not so faulty as to■ require such an infeo'ence.

      (c) Omissions, imperfections, faulty construction. A long list of such instances is not sufficient to impeach a certificate for fraud, where they are explained as by showing that in some cases the faulty construction was expressly directed by the architect; in others the-work was extra work not undertaken by the builder; in others the work was originally well done and after-wards torn up by other parties; in others the work was not required to be done by the contract; in others, it was a question of doubt what the plans and specifications did call for; in others the fact was denied, and' in many cases the faults were trivial.
    3. Additions or alterations.
    1. Clause permitting such to be made and providing they “ shall: in no way affect or make void the contract.”

      (a) Effect on a clause-providing for liquidated •damages of so •much per day for each day that the work remains uncompleted after the term fixed by the contract.

    1. Notwithstanding such alterations or additions so delay the work as to render it impossible to complete until some thirty days after the time fixed,—the additions or alterations taking that much further time; yet the builder is liable for the stipulated sum for each of the thirty days,

    UNLESS
    the time has been extended by agreement, or nonperformance by the day fixed, has been waived.
    1. Extension or waiver not implied.

      (a) The bare fad that the additions or alterations necessarily delayed the work for a space of time equal to that between the time fixed for completion and actual completion, will not raise an implied agreement for extension of time nor waiver of non-performance by the day.
    4. Painting, imperfect finish of.
    1. Excuse for, what not.

      (a) That the wood-work is so roughly finished that a good job of painting cannot be done on it, is no excuse for not producing the right finish.
    H. MECHANIC’S LIEN LAW.
    1. Sub-contractors.
    1. No lien when.

      (a) Where a sub-contractor makes a further sub-contract, and his sub-contractor does not do his work to the satisfaction of the architect, whereupon the principal contractor employs others to do the work, charging the expenses to bis subcontractor, there is nothing due the sub-sub-contractor on his contract, and he has no lien on the premises in respect of it.
    1. Extra work. Where a sub-sub-contractor claims to have performed his work—to wit, to have put on three coats of paint—but the architect willnot accept it, and thereupon his principal, a sub-contractor, agrees with him to do further work—to wit, put on another coat—without any authority from the owner so to do, the sub-sub-contractor has no lien for such so-called extra work.
    2. Foreclosure of.
    1. Judgment, form of.

      1. Liens by principal contractor and by sub-contractor.

      (a) Personal liability op owner to sub-tractor. In the case at bar, the amount found due the contractor from the owner exceeded the amount found due the sub-contractor from the contractor,
    HELD
    the owner was personally liable to the subcontractor in case of a deficiency.
    Before Sedgwick, Ch. J., Speir and Freedman, JJ.

      Decided December 6, 1880.
    This action is- brought to foreclose a mechanic’s lien filed by plaintiffs.
    About February 23, 1877, plaintiffs and William McCarty Little and Augusta McCarty Little entered into a contract of which the following is a copy :
    “exhibit ‘a.’
    “Articles of agreement made this twenty-third day of February, in the year one thousand eight hundred and seventy-seven, • between William McCarty Little, of the city, county, and State of New York, and Augusta McCarty Little, of the city, county, and State aforesaid, of the first part, and De Witt Clinton Weeks and Francis Marion Weeks, composing the firm of D. C. Weeks & Company, of the city, county, and State aforesaid, of the second part; First, The said parties of the second part do hereby, for themselves, their heirs, executors and administrators, covenant, promise, and agree to and with the said parties of the first part, their executors, administrators or assigns, that they, the said parties of the second part, or their executors or administrators, shall and "will, for the consideration hereinafter mentioned, on or before the first day of September, a. d. 1877, well and sufficiently erect and finish the new building to be erected on the lots known as Nos. 46 and 48 Union Square, in the city of New ■ York ; and the alteration and renovation of the buildings now thereon standing, agreeably to the drawings and specifications made by Arthur Gilman, architect, and signed by the said parties and hereunto annexed within the time aforesaid in a good, workmanlike and substantial manner, to the satisfaction and under the direction of the said Arthur Gilman, to be testified by a writing or certificate under the hand of the said Arthur Gilman ; and also shall and will find and provide such good, proper and sufficient materials of all kinds whatsoever as shall be proper and sufficient for the completing and finishing all the erections, alterations, renovations and other works of the said building mentioned in the annexed specifications, for the sum of fifty-one thousand one hundred and forty-eight dollars. And the said parties of the first part do hereby, for themselves, their heirs, executors and administrators, covenant, promise and agree to and with the said parties of the second part, their executors and administrators, that they, the said parties of tne first part, their executors or. administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said parties of the second part, as specified, well and truly pay or cause to be paid unto the said parties of the second part, their executors, administrators or assigns, the sum of fifty-one thousand one hundred and forty-eight ($51,148) dollars, lawful money of the United States of America, in manner following: One payment of four thousand dollars when the basement beams are on; four thousand five hundred dollars when the second and third' tier of beams are on ; four thousand five hundred dollars when the fourth and fifth tier are on ; six thousand five hundred dollars when the walls are ready for the roofing ; five thousand dollars when the roof is finished; six thousand five hundred dollars when the floors are laid, stud partitions and jambs set, scratch coat all on and iron stair frames put in; two thousand five hundred dollars when the brown coat is on; four thousand five hundred dollars when the hard finish is on and the sash put in ; three thousand dollars when the trimming is done; four thousand dollars when the stairs are finished and the doors hung, and the balance of six thousand one hundred and forty-eight dollars when the work is completed according to the plans and specifications aforesaid.
    1 ‘ Provided, That in each of the said cases a certificate shall be obtained and signed by the said Arthur Gil-man, architect, and not otherwise, and it is hereby further agreed by and between the said parties :
    “ First.—The specifications and drawings are intended to co-operate so that any work exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings to the true meaning and intention of the said drawings and specifications without any extra charge whatsoever.
    “Second.—The contractor, at his own proper cost and charges, is to provide all manner- of materials and labor, scaffolding, implements, molds, models, and cartage of every description for the due performance of the several erections.

      “ Third.—Should the owner, at any time during the progress of the said building, request any alteration, deviation, additions, or omissions from the said contract he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract as the case may be by a fair and reasonable valuation.
    “ Fourth.—Should the contractor at any time during the progress of the said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days’ notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract.
    '■'■Fifth.—Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the architect, and his decision shall be final and conclusive ; but should any dispute arise respecting the true value of the extra work, or of the works omitted, the same shall be valued by two competent persons—one employed by the owner, and the other by the contractor —and those two shall have power to name an umpire, whose decision shall be binding on all parties.
    , “ Sixth.—The owner shall not in any manner be answerable or accountable for any loss or daipage that «ball or may happen to thé said works, or any part or parts thereof, respectively, or for any of the materials or other things used and employed in finishing and completing the same (loss or damage by fire excepted).
    “ It is also agreed by the parties of the second part that for each and every day after the said first day of' September, 1877, that the work to be done and performed by them under this contract shall remain undone or unfinished the said parties of the second part shall pay to the said parties of the first part the sum of twenty dollars, which said sum of twenty dollars per day is hereby stipulated to be liquidated damages, and not as a penalty, time being an essential element of this contract.
    “It is mutually understood and agreed by and be tween the parties hereto, that if the parties of the first part shall fail or omit to make the payments herein specified to the parties of the second part, at the times herein set forth, that the parties of the second part shall not be compelled to proceed further with the work by them to be done- until the payment or payments in default shall have been made, and every day of delay in the completion of such work so caused shall be offset against a day after and next succeeding the first day of September, 1877, the day on which said work should have been completed.
    “In witness whereof the said parties to these presents have hereunto set their hands, and seals the day and year above written.
    “De Witt C. Weeks. [l. s.J
    Frank M. Weeks. [l. s.]
    War. McCarty Little. ' [l. s.]
    Augusta McCarty Little, [l. s.] ”
    Plaintiffs also claimed to have done a large amount of extra work.
    The lien was filed January 12, 1878, for a balance claimed to be due on the contract, and also for a balance claimed to be due for extra work.
    Defendant Little answered.
    Defendant Mayhew claimed a balance due him on a, contract for painting, made by him with defendant Biker, who had a contract with plaintiffs. for doing certain work, including painting, and also for extra work done on the employment of Biker and plaintiff, for which he filed a lien January 3, 1878.
    He answered the complaint.
    Defendants Spitz and Henschel claim a balance due-them for work performed and materials furnished on a contract made between them and the defendant Biker. They filed their lien December 18, 1877. They answered.
    Defendant Biker interposed no answer.
    Pending the action Augusta McCarty Little died, and William McCarty Little, as executor of her will, was made a defendant.
    The issues were referred to a referee to hear and. determine.
   The facts sufficiently appear in the opinion of the referee, which was as follows :

G-eobg-e C. Hall, Referee.

The first question to be determined in this case is whether the action can be maintained at all in respect to the plaintiffs’ bill for extra work. The contract provided that, “should any dispute arise respecting the true value of the extra work or of the works omitted, the same shall be valued by two competent persons, one employed by the owner ■and the other by the contractor, and those two shall have power to name an umpire, whose decision shall be binding on all parties.” Early in the reference the defendant’s counsel objected to any proof by the plaintiff in regard to the extra work, because of the provision of the contract above quoted, but the objection was overruled on the ground that an unexecuted agreement to arbitrate is not a bar to an action upon the subject in controversy. As a general rule this principle is well settled, and the case of Hurst v. Litchfield (39 N. Y. 377), applied this principle in a case almost exactly identical with the one at bar. At a later period in the reference, however, the case of Delaware, &c. Co. v. Pennsylvania Coal Co. (50 N. Y, 250), was called to the attention of the referee. That case, while reiterating the general rule that “an agreement to refer all matters of difference or dispute that may arise to arbitration will not oust a court of law or ■equity of jurisdiction,” seems to draw a distinction between that class of cases in which “ the parties undertake, by an independent covenant or agreement, to provide for an adjustment and settlement of all disputes and differences by arbitration to the exclusion of the courts,” and the class in which “they merely, by the same agreement which creates the liability or gives the right, qualify the right by providing that before a right of action shall accrue, certain facts shall be determined or amounts and values ascertained, and this is made a condition precedent either in terms or by necessary implication” (p. 266). The case of Hurst y. Litchfield is considered in the opinion and practically overruled, and I am not able to distinguish in principle the agreement to arbitrate in the case at bar, from that in the case of Delaware, &c. Co. y. Pennsylvania Coal Co. The latter case is therefore controlling, and if there were no other reply to be made to this defense, it would, so far as the claim for extra work is concerned, be fatal to it.

But I am not able to find any proof m this case that any dispute did arise between these parties respecting the true value of the extra work, or of the works omitted. It must be borne in mind that this provision for arbitration applied only to a very narrow subject of dispute. The contract, after providing for the construction of the building and for the price to be paid therefor, provided that if any dispute arose respecting the true construction or meaning of the drawings or specifications, the same should be decided by the architect; that the work should be done to his satisfaction and under his direction, to be testified by a certificate under his hand, and that the payments should be made in installments, in each case, upon such certificate. It will thus be seen that the architect was to decide substantially all disputes about the fulfillment of the work under the contract, and in conformity with fhepjlans and specifications. But the contract contained also a clause permitting the owner, at any time during the progress of the building, to request any alteration, deviation, additions, or omissions from the said contract, and that the same should not affect or make void the contract, but should be «added or deducted from the amount of the contract, as the case might be, by a fair and reasonable valuation. And it was only in case of such additions or omissions and of a dispute as to their value, that an arbitration was provided for. Now, it appears in evidence that at the time the work was claimed to be completed by the plaintiffs, the defendant Little expressed general dissatisfaction with the work; but it does not appear that he ever distinguished between the extra work and the work done under the contracts, or disputed the value of any specific item of extra work or of any work omitted. About a fortnight after the last certificate was' given, and after Mr. Little had expressed dissatisfaction with the work, and referred Mr. Weeks to his counsel, Mr. Jackson, an interview took place between Mr. Weeks and Mr. Jackson, at which Mr. Jackson had a written list of alleged faults and shortcomings in the building. He read from this list to Mr. Weeks, and insisted that those alleged faults should be corrected, but none of the items of complaint upon that list related to the value of extra work or of omissions. There is no other proof in the case of what specific things Mr. Little was at that time dissatisfied with; at this interview Mr. Jackson in Mr. Little’s behalf proposed an arbitration to Mr. Weeks, pursuant to the provision of the contract. Mr. Weeks asserted that there was nothing to arbitrate, that there had never been any dispute about the value of his extra work or of the work omitted, and Mr. Jackson thereupon asserted that the extra work was disputed. But it does not appear that he then pointed out any item of extra work or of work omitted, the value of which he disputed. An assertion that a dispute exists does not make one. It appears in evidence that most of the extra work was done at a price agreed upon between the parties ; that being so, no dispute could arise as to its value, whatever fault might be found with its character. The work might not be properly done, but, if done, its value was fixed ; there were therefore certain portions of the bill for extra work that could not be affected by the agreement to arbitrate. If other items were covered by it, the burden of proof was on the party alleging it to show it, and that has not been done in this case.

The general character and the value or agreed price of the extra work has been proved in this case, and none of the very few objections made to the extra work seem to me well taken. I think the plaintiff entitled to recover the amount of the extra bill, less certain deductions admitted to be proper by all the parties, such as Henratty’s bill, which was paid by Mr. Little after this suit was begun, &c.

The next question of importance in the case is the effect of the architect’s certificate. The case of Glacius v. Black (50 N. Y. 145), upon which the defendant relies, contains expressions which give some countenance to the claim that in such a case the architect’s certificate is not of itself conclusive upon the parties, and that his acceptance of different work or inferior materials from. that contracted for would not bind the owner to pay for them. The facts stated in that case tending to show that there had not been in point of fact any acceptance of the work by the architect would alone seem to have authorized the decision of the court. But aside from that the court expressly distinguishes the case of Glacius v. Black from Wyckoff v. Myers (44 N. Y. 143), in which an architect’s certificate was held conclusive in the absence of fraud or mistake. The court does not overrule Wyckoff v. Myers, but substantially affirms it in all cases to which it is applicable. The language of the contract in regard to the architect’s certificate in the case at bar, is so exactly identical with that in Wyckoff v. Myers that it is evident either that the same printed form of contract was used in each case, or that the contract in this case was drafted with the case of Wyckoff v. Myers before the draughtsman, and that he borrowed the expressions in regard to arbitration from the contract in that case, with the purpose of having them governed by it. In either event the decision in Wyckoff v. Myers is almost as controlling in the interpretation of the contract in this case as if it had been rendered in a suit brought directly upon it. The general doctrine that an architect’s certificate under such a contract is conclusive, in the absence of fraud or mistake, has been held in many other cases, and the case of Glacius v. Black, does not, in my opinion, require any different rule to be applied in this case.

It is contended in the next place that the certificate which was given was not conclusive because it appeared upon its face that some of the work was not done. The certificate states that the last coat of painting in six of the suites of apartments, which were then occupied by tenants, was not finished, and recommends the withholding of $180 from the last payment, with which to pay for such work whenever "it may be done. It appears that the apartments were occupied, and it was thought best not to paint them until the tenants went out or were ready to have such painting done. The plaintiffs were ready to do the-painting, but it was omitted, and' the cost of it deducted to accommodate all parties. I do not think that the insertion of such a clause in the certificate had the effect to invalidate it or to alter its legal effect.

It is also claimed that the certificate was not conclusive, because the architect did not himself regard it as such. A letter has been put. in evidence, written by Mr. Gilman to Mr. Little after the last certificate was given to Mr. Weeks, in which Mr. Gilman stated that the certificate did not conclude, and was not intended to conclude, any just rebate or offsets which may be shown to exist in the condition of the work. This letter was admitted as a declaration of Mr. Gilman, which might contain admissions bear ing on the issue of fraud in giving his certificate. I do-not think that the conclusiveness .of a certificate can be impeached by proof of admissions made by the architect after its delivery, to the effect that he did not consider it conclusive, nor can mere proof of the architect’s belief at the time he issued it, that it did not, in law, conclude the parties, in any way invalidate it. Hr. Weeks had a right to the certificate if the work was done, and if the certificate was given without fraud or mistake, Mr. Gilman’s ideas as to its effect did not in any way impair Mr. Week’s legal rights under it. The law determined that.

The architect’s certificate, then, is conclusive, upon the plaintiff’ s right to recover the balance, due under the contracts, unless it was given fraudulently or by mistake. The defendant alleges that it was so given, and the principal controversy in the case has been upon that point.

There is no proof tending to show that the certificate was given by mistake.

The plaintiffs applied to Mr. Gilman for a certificate in the early part of November. Mr. Gilman examined the premises and made out a written list of things to be done, which was dated November 16, and gave it to Mr. Weeks. He also obtained from Mr. Jones, the janitor of the building, who had formerly been a carpenter, a similar list, which he also gave Mr. Weeks. In December, he twice personally made a thorough examination of the building, once with Mr. Crooks, an architect, and once alone. He also had two others, Mr. Harnett, an experienced architect, and Mr. Keeley, an old and experienced builder, examine the house. He knew that the defendant was dissatisfied. Finally, on December 20, he wrote to Mr. Jackson, stating that if there were shortcomings'in the work which he had been unable to détect, he would be glad to have a list of them. He thereupon received a reply in which Mr. Jackson refused to furnish any list. He then, on December 24, executed the certificate and delivered it to Mr. Weeks. After doing so, however, he asked Mr. Weeks to withhold it a few days, and on December 27, he finally issued it to Mr. Weeks. There is, therefore, in my opinion, no basis for any claim that he acted under any mistake, or without such a thorough examination and knowledge of the work as would enable him to form an accurate judgment upon the question of its completion.

Nor is' there in this case any testimony tending to afford what may be called direct' proof of fraud. A large amount of testimony has been taken in regard to the actual condition of the building, the defendant claiming that the faults in it were so gross and so obvious as to justify the inference that the architect acted fraudulently in certifying to its completion. The effect of this testimony will be considered later, but aside from it there is, in my opinion, no testimony Avhatever tending to prove that the architect acted fraudulently in giving the certificate.

The defendant’s counsel contends that the fact that the architect did not discover or make known the insufficiency of the walls when the first contract was made, and prepared specifications which are alleged to have been vague and lacking in precision, are proof that he acted fraudulently in giving the certificate. They may or may not be facts of which Mr. Little can complain, but I do not see that, they have any connection with the. giving of the certificate. It is also claimed that the change of the date of the certificate affords proof of fraud, but I can see in that act nothing but a natural desire to avoid irritating Mr. Little, whom Mr. Gilman knew to be somewhat dissatisfied. So it is claimed that the certificate was given furtively, without notice to Mr. Little. But it seems to me that Mr. Gilman’s letter of December 20, to Mr. Jackson, was sufficient notice that Mr. Gilman thought the work completed. There is no proof of any conspiracy or collusion between Mr. Gilman and the plaintiffs. There is no proof that Mr. Gilman was under any obligations to the plaintiffs or had any reason to expect any advantage from violating his duty to Mr. Little, or that he ever, in fact, received any benefit whatever by reason of giving the certificate. There is an entire absence of proof of any motive for Mr. Gilman to do an act not only so dishonorable in itself, but ruinous to his professional reputation. At the same time fraud often can be proved only indirectly, and the condition of any building might be such, that it alone would constitute conclusive proof that an architect had acted fraudulently in giving a certificate that the contract for its construction had been properly performed.

In considering the effect of the defendant’s testimony in regard to the condition of the building it is proper to say at the outset that considerable testimony has been given in regard to deviations from the plans and specifications, which is fully explained by the fact that such deviations were agreed upon in the course of the work. Other apparent deviations from what are known as the second set of plans are also explained by the fact that the second set of plans contain some things indicated as to be done, which were drawn upon them, but were not in fact decided to be inserted.

The architect at the outset prepared a set of plans and specifications based upon the idea of using certain walls and portions of the old houses on the premises. These plans and specifications were signed as a part of the contract. Afterwards it was decided to entirely demolish the old buildings and to build anew, and additional stories were also subsequently added. A new set of plans were thereupon drafted, but were not signed, and no new specifications were prepared, but the old specifications seem to have been applied to the new plans. Mr. Buckingham, an architect-,' who has testified with clearness and precision in regard to the alleged defects, became acquainted with the house after the building was completed, and based his-testimony upon the theory that whenever the details shown upon the plans and specifications were not complied with the plaintiff had not performed his contract. But, in fact, in this building, as in almost all cases, changes of detail were made as the work progressed, and these changes appear still greater from the looseness with which the final plans were treated, and the absence of new specifications to accompany them. For instance, Mr. Buckingham specifies the following apparent deviations from the plans and specifications : that there are no outside blinds ; that the lintels over the kitchen fireplaces are not of full width, and the plaster work about them improper ; that certain gas-pipes are not correctly placed ; that the linen closets were omitted; that the janitor’s bath-room was unfinished ; that there were no tiles on certain architrave blocks ; that the butlers’ pantries were nowhere according to the plans; that the iron-work shows marks of the sand in casting; that the windows on 17th street are four inches too high ; that the transom lights had no cords, &c. Each one of these apparent deviations from the plans, and a number of similar ones, are explained by testimony on the part of plaintiffs, that alterations were decided upon during the progress of the work, which testimony is nob denied by Mr. Little.

The most serious faults in the building are those resulting from settlements. There are three distinct parts of the building where settlements occur, one in the east suite, one in the library of the south suite, and one about the light-shaft. The effect of these settlements is to make the floors and ceilings slope down towards the point of sinkage, to crack the plastering, to make the frames of doors and other trimming out of level, to make the doors bind, &c. These results appear in each suite affected, from the lower stories to the top of the house, the higher the story, the more notable being the damage.

The effect, particularly in the upper- stories, is most serious. A number, of the floors and' ceilings there have such a slope that it is palpable at a glance, the' frames of doors are so out of level that it will be necessary to take them out of the wall to straighten them, and to replaster around them when they are,put back, as has already been done in a number of instanc s. There are several doors there which have become so deflected that when they are shut in the frame of the door there remains an open space over the top of i e door. The cracks in the walls are very large and extensive. Some cracks in the uppermost stories were, I should think, more than one inch in width. In short, the consequences of these sinkages are very detrimental to the house, and I have no hesitation in saying, that if they were due to any acts or omissions of the plaintiffs in violation of the contract, I should hold that the architect’s certificate had been fraudulently obtained by the plaintiffs, and was invalid.

But I am convinced that these sinkages are not due to any violation of the contract by the plaintiffs. They are due, in my opinion, to the character of the plan itself and the weakness of the construction in accordance with it. Mr. Gilman and other witnesses for plaintiff have given much testimony in explanation of this matter. It is generally to the effect that Mr. Little was unwilling to incur the expense which the use of iron beams would have entailed, and was desirous of having open stores on the first floor. He was therefore obliged to use wooden beams, and was not able to run up the usual brick partitions from the cellar under the partitions on the upper stories. Mr. Gilman says that this style of construction necessarily involved some sinkage, and it clearly appears in testimony that he warned Mr.. Little that sinkages would occur, and that he must expect to expend at least five per cent, of the original cost of construction in overhauling the building within a year or two after it was finished. Mr. Little states that he knew that all new buildings had to be overhauled, but that Mr. Gilman said nothing to him indicating that any unusual sinkages would occur, or unusual overhauling would be necessary. Mr. Gilman is not a party to this action, and it is no part of my duty to pass on the sufficiency of his explanation. It is sufficient that the plaintiffs were not responsible for the sinkages, and if any one else was responsible for them, there is no justice in making the plaintiffs pay for the damage they have caused.

The next most serious fault asserted by the defendant, in the construction of the house, is the general carelessness and roughness of the finish of the woodwork. It appears in testimony and is evident upon inspection that the moldings, panels and trimming, generally, of the woodwork throughout the house, were to a certain extent rough and carelessly done ; in some places the mark of the saw is apparent on the wood ; the windows in some places leaked ; the trim in some places was not level, and generally in my opinion the finish of the woodwork was of quite an ordinary character ; in the six apartments which had not received the last sandpapering and coat of paint provided for in the last certificate, the woodwork is admitted by all parties to have been improperly finished. In the other apartments, however, whatever criticisms may be made upon the work, I cannot hold that the finish was so faulty as to require the inference that the architect acted fraudulently in giving the certificate. The architect originally exercised his judgment in the matter. A large quantity of the woodwork which was sent to the house was rejected and sent back to the mill, and presumably that which remained was deemed satisfactory. The question is not what I think of the work on the merits, or whether the architect erred in judgment, but whether the work is so bad, that it, of itself, proves that the architect gave the certificate knowing that he violated his trust in doing so.

The other faults referred to by Mr. Buckingham and the defendants’ other witnesses seem to me much less important than either the sinkages or the roughness of the finish of the woodwork. The principal objections which he makes and which have not been referred to are that the caps of certain soil-pipes were not properly soldered, that certain sash were improperly weighted, that some sliding-doors stuck, that some window catches were put on the wrong side of the window, that the fan-lights over doors had plain glass instead of ground glass, that there were in some windows soft pine parting strips, that some wash-tubs-leaked, that some trap-doors in the balconies could not be lifted, that the moulding around the wire netting of the elevator doors was too small, that the saddle of the elevator door projected too much, that certain roof sky-lights leaked, that the concrete cellar floor was bad in spots, that certain ventilator pipes were faulty, that some of the water-closet pulls needed to have a screw put in another place, that certain sash was inch in width and not 1M inch ; that all sash was too narrow, that the glass in the main door was decorated by a sand-blast process instead of being engraved by hand, that the glass throughout was poor in quality, that the basement stairs were unsuitably finished, that some architrave blocks do not match, that some dumb-waiter doors are other doors cut down, that the main balustrade rocks, that there is no gutter on the edge of the roof, that the library flue in the east suite does not draw,. that some flues leak, that the boiler pipes are brass instead of copper, that certain sinks have traps in the leg instead of outside traps, that the boiler stands are too large, that the bay-window is not plumb or level, that the foot rails of certain sash are too heavy, that certain beams are not sufficiently bridged, that certain trimmers are not spiked together, that the bridging was in places insufficient, that certain openings in the sewer were improperly covered, that there was no street washer, that the basement steps were not properly bolted, that certain valves were omitted in boiler pipes, and that the hand rails and balustrades of the stairs were unsuitable.

This list seems formidable by its length, but most of these alleged faults are satisfactorily explained ; in some cases the method of construction alleged to have been faulty was expressly directed by the architect, in other cases the work complained of was extra work not undertaken by the- plaintiffs at all, in others the work was originally well done and afterwards torn up by other parties and not left in good order, in others certain things the omission of which is alleged as a fault were not required to be furnished by the contracts, in others it is a question of doubt what the plans and specifications did call for upon which by the contract the architect’s conclusion was final, in others the fact alleged is denied, and in many cases the faults complained of are of themselves trivial.

Upon the whole, therefore, I think the architect’s certificate is conclusive. Fraud is never presumed. It must be proved. The burden is on the defendant to prove it in this case, and I thing he has failed to overthrow the legal presumption that the architect, in giving the final certificate, did not act in violation of his duty to his employer.

The original contract provided that the building should be completed on September 1, 1877, and that for each day after that date that the work should remain unfinished, the plaintiffs should pay the owners $20 a day as liquidated damages, and not as a penalty, time being declared to be an essential element of the contract.

The same contract contains a clause providing that, “should the owner at any time during the progress of the said building request any alteration, deviation, additions, or omissions from the said contract, he shall be at liberty to do so, and the same shall, in no way, affect or make void the contract,” etc.

After the work had progressed a few weeks under this contract, it became evident that the Avails of the old buildings could not be used in the new one, and that alterations -in the contract would be necessary. Various alterations were discussed for some weeks, and at length certain alterations were decided on. Ultimately, two stories, in addition to Avhat were originally contemplated, were added. At some time, when some of these additions were under discussion, an interview took place between Mr. Jackson, Mr. Weeks,' and Mr. Little, at which it was agreed that the plaintiffs, in case certain additional ■ work should be done, should be allowed one month, or till October 1, in addition to the time fixed by the contract, in which to complete the work. The witnesses differ as to the time of that conversation ; the defendant’s witnesses putting it at the time of the execution of the acceptance of the second contract, and the plaintiff’s witnesses putting it early in the work. There is nothing in which the memory is more treacherous than dates, and I think, from Mr. Candee’s testimony and from some other circumstances, that the conversation in question took place early in the work, before the entire work ultimately done was decided upon, and that the additional four Aveeks spoken of as necessary for the completion of the extra work referred to the extra work then contemplated, which was much less than was ultimately done. But if the additional month then spoken of did refer only to the work then contemplated, that is not, I think, decisive of the question. The plaintiffs contend that, if additional work was later agreed upon, an agreement for an extension of time necessary to complete the addional work is to be implied. It is argued that, in any modification of the original contract providing, for additional work, the provision in regard to liquidated damages cannot be inferred as a part of the supplementary contract, and must be proved affirmatively to have been made a part of the supplementary contract. This would be true if the original contract contained no other provision on the subject than the clause providing for liquidated damages. But the clause which provides that any alterations or additions to the work, “ shall in no way affect or make void the contract,” seems to me to entirely change the case. The party who alleges that any subsequent agreement providing alterations or additions did in fact “affect and make void ” the provision of the contract providing for liquidated, damages must prove it. If no agreement had been made extending the time, the whole building with its additional stories must have been finished on September 1. Mr. Weeks admits that there was no specific agreement extending the time later than the additional month, and Mr. Little asserts that he understood the conversation about the additional month to apply to the entire additional work. He had a right to assume it if Mr. Weeks did not see to it that a definite agreement was made extending the time still further. There is no sufficient proof of a waiver by Mr. Little of the liquidated damage clause. The letter written to Mr. Weeks at Mr. Weeks’s request would afford some proof of such waiver if it had been unsolicited; but I do not think that a letter, written, not necessarily to express the writter’s own opinion, but to be used by the person to whom it was written for another purpose, can be regarded as containing admissions of much weight. A waiver must be clearly proved, and I do not think it has been proved in. this case. The defendant, therefore, should be allowed a deduction of $20 a day from each day from October 1 to December 24, the date when the work was in fact completed to the satisfaction of the architect.

The other counter-claims of the defendant are not admissible. The damages were liquidated at $20 a day. If, in addition, the defendant could be allowed to prove actual damages, the provision for liquidated damages would be nothing but a penalty.

The following statement shows the amount which in my opinion is due to the plaintiffs:

Total amount due plaintiffs is, with interest from December 27, 1877 .... $8,551 76

The amount of the claim of the defendants Spitz & Henschel and the validity of their lien are not disputed by anybody. The amount due them is $308.11, with interest from December 27, 1877, and as their lien was filed first it is entitled to priority over the others.

The defendant Eiker asserts no claim in this action and disclaims any lien on the property.

The defendant Mayhew claims to recover $92.50 for a balance due on his contract, and $658.67 for extra work. He made a contract with Hiker to furnish all materials and do the work of painting, etc., according to specification and to the satisfaction of the architect. The specifications required that all the interior pine finish be painted with three good coats in the best manner.

The plaintiffs in their general contract with the owners contracted to build the entire building, and were responsible to them for its completion. The plaintiffs made a contract with 'Hiker for the carpenter work, which included painting, and Hiker made another contract with Mayhew for the painting. May-hew did not perform his contract to the satisfaction of the architect, and Weeks employed other painters to complete it and paid them for such work nearly $200, charging the amount to Biker; nothing therefore is due to Mayhew on his original contract, and he has no lien upon the premises in respect to it. After the painting had proceeded a while Mayhew asserted that the interior of the building was painted with three coats. The work was not satisfactory, and the architect would not accept it. Biker thereupon made an agreement with Mayhew whereby Mayhew agreed to put on another coat of paint throughout for a stipulated price, and that work is called in this action the extra work. There is no proof that the owner ever authorized this extra work, and from the fact that the architect would not give a certificate without it, it is to be inferred that he either thought the three coats had not been put on or that the work had been improperly done. Under these circumstances I cannot see that Mayhew can have any lien on the building for this extra work. Mayhew claims, however, to recover a personal judgment against Biker for the amount. Biker admits that he made the contract for the so-called fourth coat, but defends this claim on the ground that Mayhew fraudulently stated to him that three coats of paint had been put on when in. fact they had not been put on. Mayhew undoubtedly did represent to Biker that the three coats had been put on, and his right to recover, therefore, rests on the question whether they had been put on or not.

Upon this point the testimony is quite conflicting. A number of men employed by Mayhew testify that the three coats were substantially put on throughout the house. Two witnesses, however—William Bichards and James Bichards, to whom Mayhew sublet the painting of two floors testified that Mayhew told them, after two coats were put on— that the work looked well enough, and not to put on a third coat, and that they followed his directions. They were apparently truthful witnesses, and their testimony was not contradicted by Mr. Mayhew, who afterwards testified upon other points. Mr. Gambling, who was employed to complete some of Mayhew" s work, and Mr. Weeks also testified that the three coats in many places had not been put on. If they had properly been put on, I. cannot see the necessity for a fourth coat. The witnesses in Mayhew’s behalf explained this by the assertion that the woodwork was finished so roughly that they could not make agood job of the painting. But it appears in evidence that in all cases painters, as a part of their contract, have to sandpaper and putty woodwork to some extent, and understand it to be a part of their duty to do so. Undoubtedly there is an implied understanding, when a painter contracts to paint the inside woodwork of a house, that the wood shall be to a reasonable extent smooth and finished. But Mayhew could see the condition of this woodwork before he began. If it was rough to an unusual degree he should have insisted on its being made smooth before he began. If he undertook the job at all he should have sandpapered it down so as to produce the right finish, and if he had done so, three good coats of paint ought to have been enough. I am constrained to hold that Hiker’s contract to pay for the extra work was obtained upon a misstatement of a material fact, and that Mayhew is not entitled to recover for it at all.

The judgment to be entered, therefore, should provide that the defendants Spitz & Henschel are entitled to recover $308.11, with interest from Becember 27, 1877, and their costs, and have a lien for such amount upon the premises mentioned in the complaint, and that their lien is prior in rank to that of any parties in this action; that, the plaintiffs are entitled to recover $8,551.76, with interest from December 27, 1877, and their costs, and have a lien for such amount upon said premises, second in rank to that of Spitz & Henschel; that the defendant Hiker is not entitled to recover anything by reason of. work done upon said premises, and has no lien upon said premises, but is entitled to a personal judgment for costs against the defendant May-hew; that the defendant Mayhew is not entitled to recover any sum whatever against any party to this action, and has no lien upon said premises ; that the owners’ equity of redemption in said premises should be foreclosed and the said premises sold to satisfy said liens of Spitz & Henschel and of the plaintiffs ; that out of the proceeds of said sale the expenses thereof be first paid ; that out of the residue, if any, the said amount due Spitz & Henschel be next paid; that out of the residue, if any, the said amount due the plaintiffs be next paid, and that the residue, if any, then remaining, be paid to the defendant Little; that in case the proceeds of said sale should be insufficient to pay said amount due to Spitz & Henschel, a personal judgment for the deficiency should be entered in their favor against the defendant Little, both individually, and as executors, &c., against the plaintiffs and against the defendant, Hiker ; and that, in case the residue applicable to the payment of the plaintiffs’ claim be insufficient therefor, a personal judgment for the deficiency should be entered against the defendant Little, both individually and as such executor.

Judgment was entered in conformity with the views of the referee.

From such judgment the plaintiff and defendant Little appealed.

The defendant Little appealed from the whole judgment.

The plaintiff from so much as adjudged them indebted to the Littles for liquidated damages in the sum of $1,700.

It. W. Be Forest, for plaintiffs.

Jackson <6 Martine, attorneys, and Okas. A. Jackson, of counsel, for defendants.

Pee Curiam.

This is an action upon a claim filed under the mechanic’s lien law. The case was tried be-for a referee and is unusually voluminous. It consists of- about three thousand seven hundred folios and about fifty requests of facts to find. The learned referee in his opinion has disposed in detail of all the questions in controversy, and his findings of fact from the evidence and conclusions of law from the facts found seem to be clearly and concisely stated. .

After a- careful examination of all the evidence in the case we have reached the conclusion arrived at by the learned referee of the general doctrine, which falls within the case of Wyckoff v. Myers, 44 N. Y. 143, that the architect’s certificate under such a contract is conclusive, in the absence of fraud or mistake, and does not -call for a different rule to be applied in this case.

Judgment affirmed on opinion of the referee.

       The certificate was as follows:
      “New York, December 37; 1877.
      “I certify that the sum of six thousand one hundred and forty-eight dollars (§6,148), being the eleventh and last payment to D. 0. & F. M. Weeks under their contract of February 33, 1877, made with Mrs. Augusta M. Little and Wm. McCarty Little, Esq., for work and materials on the new buildings, Nos. 46 and 48 Union square, said eleventh payment being due “when the work is completed according to plans and specifications,” is now due accordingly, the terms of the contract having, in my judgment, been fully complied with.
      “And on the second contract between the same parties, bearing date April 34, 1877, I find the final sum of four thousand one hundred and four dollars (§4,104), to be now due in like manner.
      “Note, however, that six of the suites in the house being occupied at the time of the fourth coat of paint being put on, could not be painted over with said fourth coat, the sum of §30 for each suit, or §180 in all, shall be retained by the owners for the purpose of putting said six suits in good order and condition, as regards the painting of the same during the next summer, or whenever the rooms shall be unoccupied, so as to allow of the work being properly done.
      “Arthur Gilman, Architect.”

       The letter was as follows:
      “Dear Sir—In giving Mr. Weeks his final certificate on the contract, which, after the most mature reflection, appeared to me to be only my simple duty, I trust you will understand that it by no means concludes, or is intended to conclude, any just rebate or offset which may be shown to exist in the condition of the work. With perhaps some, very trifling matters, which may be the subject of explanation, the whole work appeared to me to be such as to demand a general approval. But in case of any matters to which your attention may have been more immediately drawn, from the fact of living in the house, if any such there are which justly demand a further attention on the part of the contractor, I am sure that you will find Mr. Weeks quite as anxious to have them satisfactorily adjusted as either you or I may be to see that they are properly done.
      “Very truly yours,
      “Arthur Gilman.
      “W. McC. Little, Esq.


source: Caselaw Access Project

author: By the Court.—Horace Russell, J.

license: Public Domain

text:
    JOHN D. MAIRS, et al., Assignees, &c., Respondents, v. THE MANHATTAN REAL ESTATE ASSOCIATION, Appellant.

      Public streets.—Liability of one removing sidewalks, curb, &c., for injury to property in adjacent premises.—Damages.

    One who removes the sidewalk, curb and gutter from a public street, —e. g., in making excavation for building,—is bound to supply as good a conduit for surface water as he takes away, and failing so to do, is liable to the owners of adjacent premises for injuries to property therein, resulting from such omission. This, though the removal of the curb and gutter be made with the permission of the municipal authorities, and though measures (which pi'ove ineffectual) be taken with the acquiescence of the owners of such adjacent premises, to prevent such injuries.
    The removal of the sidewalk, curb and gutter amounts to a nuisance* ' The measure of damages in such case, is the actual loss in the property injured and the expenses incurred by such damage, with interest.
    Before Speir and Russell, JJ.

      Decided December 20, 1880.
    Appeal by defendant from a judgment in favor of plaintiffs, entered upon a verdict of a jury in May, 1878, for $7,525.
    The action was brought by the plaintiffs’ assignors, F. S. Weeks & Co., for damages to their stock of goods, consisting of paper-hangings, occasioned by the flooding of their cellar, in consequence of the alleged fault of the defendants, in July and August, 1873.
    Since the action was begun, F. S. Weeks & Co. have become bankrupts, and the present plaintiffs have been substituted it their stead.*
    F. S. Weeks & Co., in July and August, 1873, were the occupants of the building 107 Duane St., in this city. The defendants were, and are the owners of the premises 109 Duane St., next door west of 107. The ■declivity of the street is to the west, so that surface water runs from the east to the west: Water running in the gutter would ordinarily run by the premises of Weeks & Co., and then by the premises of the defendant.
    In the summer of 1873, the defendants began the construction of a large building upon their premises. They not only excavated the earth upon their premises for the purposes of a cellar and sub-cellar, but took away the sidewalk, curb and gutter, and excavated the ground for the purpose of building vaults under the sidewalks. Upon taking away the sidewalk, curb and gutter, they built a dam at the- upper point intended to prevent the water from running into their excavation, by turning it across the street and compelling it to run down the gutter on the other side. The removal ■of the curb and gutter was done with the permission of the municipal authorities. The dam was erected by the acquiescence of the plaintiffs’ assignors.
    On the night of July 27, 1873, there was a heavy storm of rain, so that the dam erected by the defendants gave way, a large quantity of water ran into their excavation, where the sidewalk had been, and then, by percolation or otherwise, as is claimed, into the plaintiffs’ cellar, in which were stored large quantities of paper-hangings, which were injured. Sub- ■ st'antially the same thing occurred again on August 29, in the game year.
    The plaintiff’s building was not erected upon the line of their lot, and there was a space between their westerly wall and the wall of the defendant’s building, which at that time had nearly reached the level of the street. In front, on the street line, the defendant’s wall was quite even with the street level. There were holes in the foundation walls of the plaintiff’s building, left there when, the building was shored" up on some former occasion.
    The evidence all tended to show1 that the water which ran into plaintiffs’ premises came down the gutter and ran first into the defendant’s excavation where the sidewalk had been, then into plaintiffs’ premises, because the dam theretofore erected had broken away.
    The judge who presided at the trial, substantially charged the jury that as to the damages which occured in July, the defendants were liable, and that the only question to be submitted to them was as to the amount of damages, and left to the jury the question as to whether the injury which occurred in August, was occasioned in the same way as that in July.

      James Emott, and William P. Dixon, for appellants.
    ' Eugene L. BusTie, attorney, W. Howard Wait, of counsel, for respondent.
   By the Court.—Horace Russell, J.

The theory of the learned judge who presided at the trial seems to have been that inasmuch as the defendants removed the sidewalk, curb and gutter—the natural conduit by which surface waters were carried off—they were bound to protect the plaintiffs’ assignors in some other way against such surface waters, and failing to do so, were liable for any damages resulting from their act. There is abundant authority for that proposition (Dygert v. Schenck, 23 Wend. 446; Jutte v. Hughes, 67 N. Y. 267; Farrand v. Marshall, 21 Barb 409; Congreve v. Morgan, 18 N. Y. 84; Prixley v. Clark, 35 Id. 520; Hay v. Cohoes Co., 2 Id. 159; Bellows v. Sackett, 15 Barb. 102; Thomas v. Kenyon, 1 Daly, 132 ; Adams v. Walker, 84 Conn. 466).

The removal of the sidewalk, curb and gutter, amounted to a nuisance, and the. defendants were liable to any one injured thereby (Irvine v. Wood, 4 Robt. 138; Irvin v. Fowler, 5 Id. 482). It made no difference whether or not the plaintiffs’ assignors acquiesced in the building of the dam. It was the defendant’ s business to provide a dam which should be as effective, so far as this purpose was concerned, as the curb and gutter had theretofore been.

The defendant’s counsel on the argument urged that inasmuch as the city authorities had given the defendants] a permit to remove the sidewalk, curb and gutter, they were not liable in this action.

Such permit only protected the defendants from prosecution for the infringement of corporation ordinances, or possibly an action by the city. It could not give the defendants greater power than the city would itself have ; and had the city removed the curb and gutter, and the same damage resulted therefrom to the plaintiffs, it would have been liable (Shearman & Redfield on Negligence, § 385, note; Lewenthal v. Mayor, 61 Barb. 511; Wallace v. New York, 2 Hilt. 440; Donahoe v. Mayor, 3 Daly, 65 ; Lacour v. Mayor, 3 Duer, 406; Barton v. City of Syracuse, 36 N. Y. 54; Storrs v. City of Utica, 17 Id. 107 ; Creed v. Hartman, 29 Id. 591). There is little, if any, difference in principle between the responsibility of the defendants to foot passengers by reason of their removal of the sidewalk, and their liability to plaintiffs’ assignors, by reason of the removal of the curb and gutter—a public easement in which they had a right (Walsh v. Mead, 8 Hun, 387; Shipley v. Fifty Associates, 101 Mass. 261).

Various requests to charge were presented to the judge, substantially asking him to charge that if the water got upon the plaintiffs’ premises in some other way, as by a defect on their own sidewalk, the defendants were not liable. He declined so to charge.

There was no evidence that the plaintiffs’ sidewalk was defective, and a judge is not required to charge propositions not based upon evidence. This same observation applies to the other requests touching the. manner in which the damage occurred. It was quite apparent that the water got into the plaintiffs’ assignors’ premises from the defendant’s, and into the defendant’s through the excavation of the earth where the sidewalk had been, and in consequence of the removal of the curb and gutter.

The requests to charge that if the plaintiffs’ building was in bad condition, and in consequence thereof the injury occurred, the defendants were not liable,, was properly refused.

The request to charge that the defendants were not liable if only by unusual caution on their part the damage could have been prevented, was also properly refused.

They were bound to supply to the plaintiffs as good a conduit as they took away, or failing to do that, were responsible in damages for whatever injury resulted.

On the question of damages, the judge instructed the jury that the plaintiffs could recover only their actual damage by loss in the value of their paper injured, and their expenses occasioned by such damages, with interest. •

In a case like this, interest as interest may not be allowed, but interest as damages may be. The extent of the injury to the'goods, and the expenses incurred, were an ascertained sum within a short period after the damage occurred (Sedgwick on Damages, p. 386 ; Greer v. Mayor, 3 Robt. 406 ; Parrott v. Knickerbocker Ice Co., 46 N. Y. 361).

I see therefore no reason to interfere with the judgment.

The judgment should be affirmed, with costs.

Speie, J., concurred.


text:
    In the Matter of the Petition of WARREN BRADY.
    i Assessment—application to vacate, when denied for laches.

    A motion to vacate an assessment, made eight years after the assessment -was laid and confirmed, it appearing that in the intervening time, a large proportion of the property conveyed thereby had changed hands and the assessment thereon been paid, should be denied on the ground of laches.
    Before ■ Sedgwick, Ch.J., Speir and Russell, JJ.

      Decided December 20, 1880.
    Appeal from an order of the special term denying the motion of the petitioner to vacate an assessment.
    The assessment was laid April 27, 1871. This proceeding was begun December 27, 1879.

      James A. Deering, for appellant.

      William Q. Whitney, counsel to the corporation, and. John A. Beale, for respondent.
   By the Court.—Horace Russell, J.

The order appealed from should, in my judgment, be affirmed on the ground of laches.

This case, so far as laches is concerned, is like that of Lord (78 N. Y. 109 ; 21 Hun, 555). In that case, an assessment was continued in September, 1869 ; the petitioner commenced proceedings in the supreme court in December, 1876. His petition was denied at special term on the ground of laches. The general term affirmed the order; the court of appeals reversed the decisions below, because it did not appear that there had been any change in the relative position of any of the natural persons affected or sought to be, by " the proceeding. In other words, because it" did not appear “ that the city had ever enforced the assessment against any property or owner thereof or that any owners have ever voluntarily paid.” Upon the re-hearing ordered by the court of. appeals, it was shown that of the entire assessment, over one-third had been paid by the owners of property, and that two other lots, subject to the assessment, had changed hands since the assessment was laid. Thereupon, the special term again denied the petitioner’s application, and the order was affirmed at general.term (21 Hun, 557).

Barrett, J., delivering the opinion of the court, says : “It now appears that the assessment has been

partly enforced and paid ; also that some of the lots have changed hands. Thus, owing to the petitioner’s great laches, it has become impossible to do justice to other property owners. The petitioner has enjoyed the benefit of the improvement during all these years, and now, upon a mere technicality, without alleging fraud, oppression, or even unreasonable charges, he seeks to throw the burden upon the general tax-payers of the city, including, of course, these very property owners who have already paid their full share of the cost of the worlc. . . . . . . The question of his laches is an independent one. If he had moved within any reasonable time, the merely formal irregularities of which he complains might have been corrected, and a new assessment effectively laid. The latter is now practically impossible. There is no real merit in the application, and under the intimation of the court of appeals, as to the effect of the evidence now before us, it should be denied.”

In the case before us, it appears that over three-fifths of the property covered by the same assessment as that ¿gainst which the petitioner seeks relief, has changed hands. The decision in that case seems, therefore, to be clearly in point. The facts of this case afford even stronger reasons than existed in that for denying the petitioner’s application. I regard that decision as controlling (People v. Mayor, 2 Hill, 12, 13; Elmendorf v. Mayor, 25 Wend. 693; People v. Hill, 53 N. Y. 549 ; People v. Supervisors Alleghany, 15 Wend. 198 ; People v. Stilwell, 19 N. Y. 531; State v. Newark, 30 N. J. Law, 303 ; State v. Jersey City, 35 Id. 455 ; Chinn v. Trustees, 32 Ohio St.; Am. Law Reg. March, 1879, 203; People v. Utica, 65 Barb. 9; Wiggin v. Mayer, 9 Paige, 22).

Most, if not all of the questions raised by the petitioner on the argument, seem to have been heretofore decided adversely to the theory he maintained. I should feel bound to respect those decisions, and therefore, have not carefully considered them upon their merits. If they are overruled by any court, that court should be the one which finally determines the law in this State. The same may be said as to the case of Lord, above cited.

The order of the special term should be affirmed with costs and disbursements.

Sedgwick, Ch. J., and Speir, J., concurred.


text:
    GEORGE T. NEWHALL, Appellant and Respondent, v. WILLIAM H. APPLETON, et al., Respondents and Appellants.

      New trial — what constitutes such surprise as to call for—what is such newly discovered evidence as affm'ds grounds for.

    Where plaintiff, in his complaint, admits payment of a certain sum on account of the claim in suit and demands judgment for the balance, testimony given by him, under objection, to the effect that a portion of such payment was on account of a claim other than that in suit, the witnesses cognizant of such payment not being accessible, constitutes such surprise as to afford ground for a new trial; this, though the answer alleges payment of a sum equal to or larger than that admitted by the complaint.

      It seems, that such error can be cured upon appeal by compelling plaintiff, as a condition of affirmance, to stipulate that his judgment be reduced by the amount so withdrawn from his admission of payment.
    "Where verdict in such case has been rendered in accordance with the plaintiff’s testimony, a letter from plaintiff to defendants’ agent, tending to show.that the payment admitted by the complaint (and which the plaintiff was allowed to testify to. have been made upon a specific claim other than that in suit), was made wholly on general account, and which letter tends to impeach plaintiff’s testimony, and also amounts to an admission of facts, inconsistent with the theory of plaintiff’s claim,—is such newly-discovered evidence as, other things being equal, affords ground for a new trial.
    Before Freedman and Russell, JJ.,

      Decided December 20, 1880.
    Appeal by the defendants from an order denying a motion for a new trial on the minutes.
    Appeal by the defendants from an order denying a motion for a new trial on the ground of surprise.
    Appeal by the plaintiff from an order granting a ■ new trial on the ground of newly-discovered evidence.
    All these appeals were heard together.
    The action was brought to recover for the plaintiff’s services in selling subscription publications for the defendants upon special contract. His complaint alleged the partnership of the defendants, his employment as canvasser by them in May, 1876, through one S. L. Hall, their agent, which first employment terminated December 20,1877; a second employment December 20, 1877, made with the defendants through their agent, one Davis, “ with the express agreement and condition then made that" the plaintiff should go to Louisiana and Texas at their expense, and there solicit and obtain orders for their publications known as ‘ Picturesque Europe,’ ‘ Turner’s Gallery’ and the ‘ American Encyclopedia,’ and that plaintiff should receive $15 for each and every order he obtained for said ‘Encyclopedia,’ and $4 for each and every order he obtained for said other publications, and in the event that his orders so obtained did not amount to $60 a week for such time as plaintiff was so employed, then that plaintiff was to receive for said service $60 a week ; that under said contract, the plaintiff vfaithfully worked for defendants for twenty-two weeks, from December 20, 1877, to May 20, 1878, and in that time obtained and delivered to defendants eighteen orders in writing for said ‘ Encyclopedia,’ and live hundred and thirty-two orders in writing for said other publications known as serials, for which the plaintiff’s commissions, at the rates agreed upon, amounted to $2,398; that defendants accepted said orders and paid plaintiff on account thereof $857, leaving a balance due and owing therefor of $1,541.” For such sum he asks judgment.
    The defendants “admitted the plaintiff’s employment by them, but alleged that the contract between them was that he should be paid his actual railroad fare to Texas and back, not exceeding the sum of $100, and that for every tona fide subscriber for the “American Encyclopedia” who should accept and pay tor five volumes of said publication, he should, after such acceptance and payment, be entitled to receive from the defendants the sum of $15, and for every tona fide subscriber for the “Picturesque Europe” and “Turner’s Gallery” who should accept and pay for ten parts of such publications, he should be entitled to receive from the defendants the sum of $4. They denied that they made any other agreement with him than this, and alleged that between December 30, 1877, and May 30, 1878, the plaintiff delivered to them a number of alleged subscriptions or orders for the publications aforesaid, but most of them were worthless ; that only one subscriber for the “American Encyclopedia” accepted and paid for five volumes of such publication, and only sixty-nine subscribers to the “Picturesque Europe” and “Turner’s “Gallery” accepted and paid for ten parts of such publications. They further alleged that they had paid to the plaintiff his railroad fare expended by him in their service* and the sum of $906.90, as an advance on account of the commissions which they expected would be due to him on the subscriptions.
    On the trial the plaintiff offered evidence that he obtained subscriptions for thirty-two sets of what was known as the “ Condensed American Encyclopedia,” claiming that he was to have, by his agreement, $4, apiece where the subscribers took that publication in serials, and $6 where they were bound. To this evidence the defendant’s counsel objected on the ground that it was a claim not included in the complaint. The “ Condensed American Cyclopedia” was a publication in four volumes. The 1 £ American Cyclopedia” was a publication in sixteen volumes. The plaintiff’s counsel asked leave to amend his complaint by inserting his claim for commissions upon the £ ‘ Condensed Cyclopedia.” The court denied the motion to amend unless the plaintiff’s counsel would consent that the defendants should have time to amend their answer and produce their witnesses as to the New Orleans orders for “ Condensed Cyclopedia.” The plaintiff’s counsel declined to accede to the condition, and his motion to amend was thereupon denied. The plaintiff’s previous evidence had shown that the orders which he reported for the “Condensed Cyclopedia,” were taken in New Orleans. On a subsequent day of the trial, the plaintiff testified that he went in New Orleans to the officer of Mr. Baker, the agent there of the defendants, and that Mr. Baker requested him to go out and take orders for the “ Condensed Cyclopedia,” and he did. Objection was made by the defendant’s counsel to any testimony as to any contract or arrangement made between the plaintiff and Mr. Baker; as not being alleged in the complaint. The plaintiff’s counsel thereupon stated that of the moneys credited in his complaint, to wit: $857, as having been received by him on account of Ms commissions for the services alleged in the complaint, $145 was in fact on account of his commissions for the sale of the “ Condensed Cyclopedia,” and included by mistake in his complaint in the sum received by him on account of commissions upon the sale of the other serial publications named in the complaint. The defendant’s counsel objected to the admission of this testimony because it made a claim not stated in the complaint and because of surprise. The objection was overruled and an exception was taken. Thereupon the witness testified that the sum of $145 was received by Mm from Baker on account of his commissions for subscriptions for the “Condensed Cyclopedia,” and $720 was for the other publications named in the complaint.
    The jury found a verdict for the plaintiff for $1,602.92. This verdict was made up by allowing the plaintiff a commission of $15 each on eighteen sets of the “ American Cyclopedia,” and $4 each on four hundred and ninety-nine of the serial publications, then crediting $720, leaving a balance of $1,546, to which interest from June 1,1878, was added, amounting to $141.92,—total $1,687.92, which for some reason not apparent was reduced by the jury to $1602.92.
    A.motion for a new trial upon the minutes was made, which was denied. Thereupon, shortly after the trial, the defendants, upon affidavits, moved, before the judge who presided at the trial, for a new trial on the ground of surprise and of newly-discovered evidence. The motion was granted. The order was reversed by the general term, solely on the ground that the motion should have been made at special term. Thereupon, a new motion upon the affidavits was made at special term before another judge on the ground of surprise, which motion, was denied. Another motion was then made before the judge who had presided at the trial, then sitting at special term, on the ground of newly-discovered evidence, which was granted. The affidavit of • the defendants upon the last' motion for a new trial on the ground of surprise, alleged that the Mr. Baker with whom the plaintiff swore he made his arrangement about the “Condensed Cyclopedia,” was at the time of the trial in Chicago, and that the other witnesses whose testimony would have contradicted the plaintiff’s in that regard, were in New Orleans, and that the defendants were taken entirely by surprise by the plaintiff’s testimony, having no information from the pleadings that any such claim would be made. They produced the affidavit of Baker, taken in Chicago, stating that he made no such contract with the plaintiff in reference to the “Condensed Cyclopedia,” as was sworn to on the trial by the plaintiff, but did agree to pay him “for such orders as proved good,” and that all the moneys advanced by him (Baker) to the plaintiff, were advanced on general account and not on account of orders received for the “ Condensed Cyclopedia.” The defendants also produced the affidavit of one Armstrong, taken in New Orleans, to which was appended five receipts made by the plaintiff between May 2 and May 20, 1878, showing the payment to him by “ W. D. Baker, manager,” of $145, on general account of orders reported.
    On the motion for a new trial on the ground of newly-discovered evidence, the defendants produced a letter from the plaintiff to their agent Baker, written in New York and sent to New Orleans, which constituted the newly-discovered evidence. That letter was as follows :

      “ jSTew York, June 6, ’78.
    “Mr. D. W. Baker:
    “ Sir:—When I arrived at this place, I found a letter in Mr. Davis’ possession that you sent him the day after I left, saying you had paid me more than my orders were worth. I had received from you and Mr. D. $905. Of this amount you have paid $695.
    I have sent in 521 orders for P. E. and small Oyelo.' 18 large Cyclo. 25 of the first orders taken at Memphis were sent to Lyons, St. Louis, and he has served all but one. This makes 496 sent you, and at $2 they would be $1,000, the 18 Cyclo. at $6 would be $108, making $1,100. According to the lowest scale of liberality extended to canvassers there would be some $400 due me.
    ‘ ‘ As far as you are concerned, I should like a list of each town at once, and at the same time, as you will remember that you told me there would be no difficulty in my having a settlement, how do you reconcile your conversation with me in urging me to continue my labors with you in view of such a report ? I wish a report at once, as 1 have stated above.
    “ GL T. Newhall.”

      W. W. 'Badger, attorney, and Wm. A. Beach, of counsel, for plaintiff, among other things, urged:
    I. As to the motion for new trial on the ground of surprise. The evidence was not only not a surprise in fact, but could not be so in any legal sense. Admitting competent evidence to sustain an action or defense, however unexpected by an opponent, affords no ground of “surprise” (Farmers’ Bank v. Sherman, 33 N. Y. 80). The issue of how much was paid, was one of the issues to be tried, as defendants denied the admissions of the complaint, and set up the payments made. The case of White v. Smith (46 N. Y. 418), therefore, does not apply, as shown clearly below in Judge Sedgwick’s opinion. Defendants could not prove the larger sum without proving the smaller one ; hence the issue was open. The evidence was properly admitted, as a- direct rebuttal of the affirmative defense, that they had paid plaintiff $906.90 on the account claimed in the complaint ; whereas, only $720 had. in fact, been paid on that account.
    II. As to "the motion for new trial on the ground of newly-discovered evidence, the letter proves no “new fact,” as required by ¿he rule, nor even any circumstance in conflict with plaintiff’s evidence. The terms of plaintiff’s employment at $15 and $4 an order, are clearly stated in the answer, exactly as in the comp'aint, the only issue being as to whether there were any and what conditions as to payment. The letter does not touch that issue, and is therefore wholly immaterial. As to the amount paid being $905, it states less than plaintiff swore to (including the whole account and the railroad fare $100), which would be $965, for which credit has been given at the trial. On that issue it is not even cumulative. The suggestion that even at $2 and $6 an order—“the lowest rates ever paid to any canvasser”—there was still a large balance due plaintiff, is a simple and reasonable answer to Baker’s complaint, and certainly can have no bearing on the contract admitted in the answer to be at $4 and $15 an order. How .unjust it would be, therefore, after verdict to construe that letter in any way against the plaintiff, or to apply it to issues it does not touch. ■ The following authorities show clearly that some “new fact” should apjjear, of which no evidence was previously given by either side—none such is pretended here: Knoop v. Kammerer (44 How. 450); Hatfield v. Macy (52 How. Pr. 193); Gautier v. Douglas M. Co. (52 Id. 325-9); Cole v. Cole (50 Id. 59) ; Sheldon v. Stryker (42 Barb. 287) ; Brisbane v. Adams (1 Sand. 195) ; Ritter v. Phillips (2 J. & S.
      289). Also tne following, directly in point, that no new trial should be granted for evidence which might have been discovered by reasonable diligence: People v. Mack (10 How. Pr. 261-3) ; Leavy v. Roberts (2 Hilt. 285-7 ; aff’g S. C., 8 Abb. Pr. 310); Campbell v. Genet (2 Hilt. 291-7). The new evidence must also be such as- would probably produce a different result (Bank of Plattsburgh v. Heaton, 6 T. & C. 37; People v. McGuire, 2 Hun, 269 ; Chapman v. O’Brien, 39-Super. Ct. 244; Woolf v. Jacobs, 45 How. Pr. 403). The direct contrary is here shown.

      Douglas Campbell, for defendants, urged, among other things :
    I. As to motion for new trial on the ground of surprise—The opinion below is incorrect in holding that the defendants cannot now allege surprise, because they should have been prepared to prove the payments alleged in their answer. The court in its opinion says, referring to the admission in the plaintiff’s complaint that $857had been paid to him by the defendants: “If the defendants had relied upon that admission, it might have been a question whether upon the trial the plaintiff would be allowed to retract any part of it. That, however, has not been made a question so far as their motion discloses. ’ ’ In their moving papers it appears that this specific objection was taken. Referring to this testimony of the plaintiff regarding the payments to him by Baker, Mr. Campbell says: “That deponent objected to any testimony to contradict the admissions of the complaint.” It is submitted that the admission of this testimony was a surprise under the rulings of the court of appeals. Surprise arises where there is a variance between the allegation of a pleading and the proof (Farmers’ & Citizens’ Bank v. Sherman, 33 N. Y. 80). The court in its opinion seems to hold that the defendants could not.rely upon the admission of the plaintiff because they pleaded a somewhat larger payment. It says that they were bound to be prepared to prove for what their payments had been made. It is respectfully submitted that so far as the sum admitted by the complaint was concerned, they were entitled to rely on that admission despite any allegation in the answer, and were not bound to prove or be ready to prove anything about the payments except as to the difference between $857 and $906, which latter was the payment alleged in the answer. The greater includes the less. If the defendants paid $906, they certainly paid $857. If the question had arisen over the difference between $857 and $906, of course they would have held the affirmative, but no question arose over that. This balance was not insisted on. The defendants waived it by giving no testimony, and simply relied on the admission of payment in the plaintiff’s complaint. The $145 formed part of the $857. The plaintiff having made an admission in his complaint, the defendants were entitled to rely on it, even though they had denied it in their answer, and even if it was the admission of a payment, which the court says was unnecessarily stated. This did not throw the burden of proof on the defendants. “In an action brought upon an account for work, labor and materials, the complaint alleged the amount -of the account to be $541.90, and that there was a balance due, after deducting all payments, of $177.75. Held, that the complaint admitted a payment of $366.15, and that defendant was not precluded from insisting upon this admission by disputing the correctness of the items of the account” (White v. Smith, 46 N. Y. 418). The answer was a general denial, ifo evidence was given of the payments as would have been necessary if the burden of proof had been on the defendant. The court of appeals reversed the decision of the court below, which held that “the defendants should have alleged payment in his answer of $366.15, and proved it, or that he should have conceded on the trial that the plaintiff’s entire claim was $541.90, as stated in the complaint, to enable him to insist that complaint showed he had paid the plaintiff $366.15” (1 Lans. 473). The plaintiff could not deny his own admission (Schreyer v. Mayor, &c., 7 J. & S. 1; Paige v. Willet, 38 N. Y. 28).
    II. As to motion for new trial on ground of newly-discovered evidence : This letter is conclusive upon the plaintiff’s claim that, the $145 was paid him by Baker, for the “Condensed Cyclopedia” orders. . He says he has received $905 (which includes the $145), and has sent in five hundred and twenty-one orders for “ Picturesque Europe ” and “Condensed Cyclopedia,” and eighteen orders for the large Cyclopedia. He makes the whole payment stand on the same basis. It is also very strong evidence upon the main question of the case. If he was to get his pay for every order, in any event, as testified to by him, why did he care about how the orders were turning out. All that he had to do was to stand on his contract. Can any one read this letter and believe his story ? He. does not claim $4 an order, but asks for a report on them, saying that at $2 an order (the customary advance to canvassers before orders are proved), there would be about $400 due him. If his contract was such as he testified to, what was all this to him ?

       See 46 Super. Ct. 6.

       The following is the opinion of the judge at special term, denying the motion for new trial on the ground of surprise:
      “ Sedgwick, Oh. J.—A new trial is asked on the ground that the defendants were surprised at the trial by the position taken by the plaintiff, that a certain sum of $145 was paid to him by defendants’ agent in New Orleans, not on account of the contract in issue, but upon an independent contract made with that agent, and by the plaintiff’s testimony given in support of that position. In that testimony the plaintiff described the independent contract in such a way that it appeared to correspond in its terms with the terms that he swore the defendants had agreed to in the contract in suit.
      “It seems clear to me that the evidence given could not have been in a legal sense a surprise to the defendants. In their answer they averred that they had paid to the plaintiff ‘ before the commencement of this action, the sum of $906.90, as an advance on account of ■the commissions which they expected would be due to him on the subscriptions aforesaid.’ The defendants held the affirmative of this issue and were bound to prove it. The plaintiff might rest upon his proof of the defendants’ obligation and would be entitled to recover all that he claimed, unless the defendants showed what payments were made.
      “ The plaintiff unnecessarily stated in the complaint that the defendants paid $857. If the defendants had relied upon that admission, it might have been a question whether upon the trial the plaintiff would be allowed to retract any part of it.
      “That, however, has not been made a question, so far as their motion discloses.
      “Instead of relying upon the admission, the defendant pleaded the payments made, which included, of course, in their view, the $145. They were, therefore, bound to be prepared to show all the facts relevant—to show not only the facts of payment, but to meet a contradictory position, that the payment was made upon the independent contract in New Orleans. They were bound to be prepared to show for what the $40, $15, $15 and $75 had been paid, and for what they had not been paid.
      “The motion is denied, with $10 costs.”

   By the Court.—Horace Eussell, J.—[After stating the facts as above.]

The. first question is whether the defendants were entitled to a new trial on the ground of surprise.

They certainly had a right to go into the trial relying upon the plaintiff’s statement of his case in Ms complaint, and therefore, upon his admission that he had received the sum stated in the complaint on account of his commissions upon the sales alleged. therein. They were justified in not providing evidence as to matters either conceded in the pleadings or not alleged in them. The learned judge who presided at the trial" so held, when he refused to permit the plaintiff to amend his complaint unless he would consent that the defendants have time to amend their answer and send for witnesses to New Orleans to meet the new issues raised by such amendments, but on a subsequent day the judge permitted the plaintiff to partially accomplish substantially the same thing, by allowing him to withdraw his admission in his complaint as to a portion of the money received by him. The defendants had claimed that that money, as well as the other sum credited, was paid on account of the services alleged in the complaint. Their testimony tended to show it was. The evidence of Baker and other witnesses whose affidavits were subsequently produced, tended also to show it. They were justified in not taking Baker’s and Armstrong’s testimony before the trial as to this, because there then existed no issue in relation to it. The complaint substantially conceded it. I think then they might fairly claim that they were taken by surprise by this testimony, and that it should not have been received for that reason. This error, standing by itself, would justify our awarding the defendants a new trial. Perhaps the injury to the defendants, so far as it turns purely upon this question, could be cured by compelling the plaintiff to stipulate to reduce the amount of his judgment by the sum of $145, as a condition to an affirmance for the balance; but the affidavits introduced, and the letter contained in the statement of facts, present a question which goes to the merits of the whole controversy.

The verdict was one which turned upon the credibility of witnesses. The plaintiff claimed that he was entitled to his commission immediately upon sending in subscriptions, without reference to whether those subscriptions turned out good or bad—that is to say, that he was entitled to a commission of $15 upon the “American Cyclopedia,” upon sending to the defendants the name of a subscriber, even though it should turn out that the subscriber whose name he sent never took or paid for a single volume; and so as to the other serial publications. The defendants upon their part claimed that the plaintiff was not entitled to commissions upon his subscriptions unless they turned out good ; and that the usual test as to whether or not a subscription was good, was the receipt of and payment for five numbers of the Cyclopedia or ten parts of the other serial publications. The plaintiff’s version of the contract rested mainly on his own testimony as to his conversation with Davis. Davis positively denied the plaintiff’s version of the contract. The defendants introduced a great deal of evidence which tended -strongly to show that the greater part of the subscriptions sent by the plaintiff were of no value, because the alleged subscribers did not- take the usual number- of parts to make the subscription “good.” Their evidence also tended to show that they had paid to the plaintiff, for commissions, a sum greatly in excess of what he would be entitled to receive on their theory of the contract.

Without stating particularly wherein, it may be-said that the plaintiff’s letter written from New York June 6, 1878, to D. W. Baker, is somewhat in conflict with his testimony given on the trial. The affidavit of Armstrong tends to show that the $145 paid to the plaintiff in New Orleans, was paid on general account, and not specifically on account of the orders for the “ Condensed Cylopedia.” If the defendants had produced this letter or had Armstrong present to testify at the trial, the jury would have been justified in discrediting the plaintiff’s testimony and adopting the defendants’, in which case the plaintiff should have had no verdict at all. The letter, at least, comes within the rule as to newly-discovered evidence, not alone because it tends to impeach the plaintiff’s testimony given at the trial, but because it is an admission on his part of facts to some extent inconsistent with the theory of his claim.

• The testimony of Armstrong tends to .show that the defendants could have successfully met and combated the plaintiff’s testimony that the $145 paid in JYew Orleans was paid on account of subscriptions to the “ Condensed Cyclopedia” specifically, if they had information from the pleadings that such a claim would be made. So, on the ground taken by the defendants —surprise—the plaintiff’s testimony on that point ought not to have been received. If the plaintiff testified falsely on that subject, as Armstrong’s affidavit tends to show—supposing Armstrong is to be believed —a jury might disregard the plaintiff’s testimony altogether, and so defeat'his entire claim.

Substantial justice can be done only by ordering a new trial.

The result is, that the order denying the motion for a new trial, on the ground of surprise, is reversed, with costs to abide the event.

The order granting a new trial, on the ground of newly-discovered evidence, is affirmed, with costs to abide the event.

And the order denying a new trial on the minutes, is reversed, with costs to abide the event.

Fbeedman, J., concurred.