The General Term of the New York Superior Court reversed a judgment in that court in favor of the plaintiff, principally on the ground that the evidence did not support the facts found by the referee on the question of negligence in the performance of his contract with the defendant. The plaintiff now appeals, stipulating that if the order granting a new trial be affirmed, an absolute judgment shall be rendered against him. It becomes necessary, on this appeal, to examine the evidence as well as the facts and conclusions found by the referee. The plaintiff was employed by the defendant to draw the plans and superintend for him, the construction of a dwelling house, in the city of New York. The compensation was agreed on, and amounted to $500, of which the sum of $350 has been paid, and this action was brought to recover the balance remaining unpaid, amounting to $150. The plaintiff drew the plans and specifications, and the defendant contracted with the mechanics to perform the work, under the supervision of the plaintiff, and to be paid for only on his certificate of approval. It was the duty of the masons to lay out and execute their work according to the plans and specifications drawn by the plaintiff, and it was his duty to see to it that the masons performed their work properly, and in accordance therewith. *Page 376
The building was not constructed strictly in conformity with the plans and specifications, on the part of the masons, although they were furnished with copies. The error consisted in constructing the front windows between three and four inches higher than the plans required, so that they were not on the same level with the rear windows, and also carried the top of the window mouldings so high that they interrupted and run into the cornice, and marred the appearance of the rooms. The door steps were so constructed that the first step was about three or four inches too low, being only a rise of four inches from the sidewalk, when it should have been seven and a half inches. The balcony was also on the same elevation.
The plaintiff gave no notice to the defendant of these mistakes until the mason work was about completed, and continued to certify payments until the last installment became due, amounting to $1,900. The plaintiff refused to certify the correctness of the work on account of these errors, but the house was accepted by the defendant, and the last installment was paid to the masons in full. The evidence of one of the masons is, that the attention of the plaintiff was called to the fact that the balcony was too high; and the correct elevation of the balcony was directly related to that of the windows. This was at a period of the work when the error might have been corrected without great additional expense. There is no evidence on the part of the plaintiff contradicting or impairing the force of this testimony given by the mason.
The fact chiefly relied on by the plaintiff to show diligence in the performance of his duty is, that he notified the defendant of the errors before the last payment was made, and refused to furnish the required certificate to enable the masons to obtain that payment. The plaintiff relies upon the ground that the defendant might have indemnified himself for the error of the mason by refusing to make the last payment, they being unable to show that they had become entitled to the certificate, and, consequently, were not entitled to that payment. *Page 377
It is also insisted that the error occurred by the fault of the masons in laying out the work improperly at the beginning; that it was no part of the plaintiff's duty to lay out the work, and that he is not to be held to that degree of diligence which would make him an insurer of the perfection of the work of the masons. The referee found that there was no want of proper care and attention by the plaintiff.
It is impossible for this court to determine whether a defense to the claim of the masons for their last payment would have been successful. That question was not on trial. They may have been able to show that the defendant had accepted the house, and that the refusal of the certificate was of no further consequence. It seems quite clear that the defendant was not required to resist the claim of the masons, even if his defense would have been available, in order to be able to set up as a defense in this action that the plaintiff had not carefully and diligently performed his agreement. The agreement with the plaintiff was wholly independent of that between the defendant and the masons. While it was the duty of the masons to perform their work according to their agreement, it in no manner relieved the plaintiff from the performance of his duty, because the masons were obviously derelict. The more apparent was the breach of the contract by the masons, the less was the degree of diligence required on the part of the plaintiff to ascertain the defects, now so apparent, and the greater the neglect.
The evidence bearing upon the question of diligence is somewhat conflicting. It is evident that some of the opinions of the witnesses for the plaintiff are governed by the fact that it was not his duty to lay out the work for the masons. It was, however, none the less his duty, as an attentive superintendent, to see that the work was correctly laid out. The uncontradicted evidence that the plaintiff had his attention called to the great elevation of the balcony, and that he then insisted that it was right, must be allowed great weight on this question. Such a suggestion, coming, as it did, from one of the masons, called for immediate action on the part of the plaintiff, to ascertain, by measurement or in some *Page 378 other way, the certainty in a matter then easily corrected, but growing daily more expensive and impracticable.
The effect of this notice to the plaintiff may have justly operated to induce the defendant to pay the last installment due to the masons, rather than incur the hazard of contesting it by a suit in the face of evidence that the attention of the superintendent had been early called to the apparently too great elevation of the balcony, and that he had said it was right.
The plaintiff was employed for the purpose of detecting and preventing just such errors and imperfections as have actually occurred. His services were of little use if he could not, with reasonable and ordinary diligence, discover a defect of such importance, in the symmetry and regularity of the edifice, as that the front windows were higher from the beams of the first floor, and nearer to the beams above, than at the rear windows, as soon as the beams of the second floor were laid, and long before the front wall was completed.
The plaintiff can only be held for ordinary diligence, and it is quite probable, if the action was against him to recover damages for the defective construction of the building, that he would escape from liability to the defendant therefor. He is here, however, asking to recover for services that by this rule he ought to have rendered, but has not, as the Superior Court at General Term have decided. The evidence is quite sufficient to warrant such a finding. It was their province to examine the evidence as to this fact. It sustains the decision at which they arrrived, and ought not to be disturbed.
The order of the Superior Court should be affirmed, with costs.
Judgment of General Term reversed, and judgment for plaintiff. *Page 379