The contract under which the plaintiff predicates his right to recover provides, among other things, that “ enough sprinklers ” should be put in and so equipped in defendant’s building as “to meet the requirements of the New York Board of Fire Underwriters,” and in thus equipping the defendant’s building the work, in all respects, was “to be done subject to the rules of the New York Board of Fire Underwriters * * *
For equipping-the building in this manner the defendant agreed to pay a specified price, but the contract expressly provides as to the price and the time when the same should become payable, as follows: “The above price includes all labor, transportation and traveling expenses and board of men, and shall be in full for all material furnished under this contract, and shall be payable after a certificate of approval shall have been issued by the New York Board of Fire Underwriters.”
Upon the trial the certificate of approval provided for in the contract was not produced, nor was any evidence offered tending to establish that the board of fire underwriters had ever granted such certificate, or that it had unreasonably or arbitrarily refused to grant the same ; on the contrary, it did appear that it had refused to give such certificate for the reasons (1) that the building in which the sprinklers were placed was located “ beyond the reach of a fully *16organized paid fire department; ” (2) that provision was not made to supply the pipes with water automatically upon the opening of a sprinkler head; (3) that the pump which supplied the pipes with water was not of 500-gallon capacity per minute, and (4) that no guaranty had been given that steam would be maintained at all times to work the pump; The payment for the installing of the defendant’s building with the sprinklers was dependent upon the production of this certificate, and until it had been produced, according to the terms and conditions of the contract, the plaintiff was not in a position to insist upon the contract price or to demand the payment therein provided.
It appeared upon the trial, and the fact was not disputed, that the object to be attained by the defendant in putting in the sprinklers was not so much to obtain protection against fire as it was to secure the certificate in order that a lower rate of insurance upon the building might be had, and, of which fact -the plaintiff was:fully informed prior to and at the time of the execution of the contract. It, therefore, entered into the contract with full knowledge that the certificate was an essential and a material part of the contract. Upon a former appeal this provision of the contract was considered and the law applicable to it laid down in an opinion delivered by Hr. Justice Cullen . (38 App. Div. 56), in which, referring to the ■certificate, he said: “ If such a certificate enables an owner to secure insurance at less rates than he would be required to pay in the absence of the certificate, then it was an essential part of the plaintiff’s contract that it should obtain the certificate. It might very well be that the defendant had no faith in the efficacy of the plaintiff’s system as a protection against fire and would not have agreed to pay a penny for it by itself, but was well content to buy the appliances at the contract price on condition that the plaintiff also obtain the underwriters’ certificate, which would lower the rates of insurance on the factory.”
It seems to me we are bound by this construction of the contract, and such construction necessarily requires an affirmance of the judgment appealed from. But independent of it, it seems to me the judgment upon principle should be affirmed. The rule is well settled that, where a plaintiff’s right to recover depends upon some condition precedent, a recovery cannot be had until that condi*17tion be clearly and satisfactorily established. Thus, in Wheeler v. Connecticut Mut. Life Ins. Co. (82 N. Y. 543), it was said that “ when a person by express contract engages absolutely to do an act not impossible or unlawful at the time, neither inevitable accident nor other unforeseen contingency not within his control will excuse him for the reason that he might have ¡irovided against them by his contract,” and it was there held that the failure to pay an insurance premium, as required by the policy, was not excused by reason of the insanity of the insured.
In Mittnacht v. Wolf (6 N. Y. St. Repr. 44) the plaintiff presented to the defendant a proposition to furnish materials and to perform the necessary labor in erecting iron balconies in such a way as to equip the defendant’s building with fire escapes according to the requirements of the building department of the city of New York. The proposition was accepted and the balconies constructed. Thereafter an action was brought to recover the contract price, and the defendant defended upon the sole ground that the plaintiff had not performed according to the terms and conditions of the contract. Upon the trial no proof was offered to the effect that the balconies had been erected in accordance with the requirements of the building department, and for that reason a verdict was directed for the defendant. On appeal it was held that the plaintiffs were not entitled to recover under the express terms of the contract until such proof had been furnished. (See, also, Baker v. Johnson, 42 N. Y. 126 ; Ward v. H. R. B. Co., 125 id. 230.)
Under the express terms of the contract the plaintiff is not entitled to the payment therein provided until he has produced the certificate referred to. He did not produce it upon the trial, and its non-production was not the fault either of the New York board of fire underwriters or of' the defendant. Therefore, it seems to me that, for the plaintiff’s failure to produce the certificate, the complaint was properly dismissed.
I think the judgment appealed from should be affirmed, with costs.
Patterson, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.