I am unable to concur in the opinion of the majority of the court in this case. If there were nothing else involved in it than what is referred to in that opinion, I might coincide in some of the views therein expressed, but the real question at issue, as the case came before ns, is totally ignored in the prevailing opinion and it seems to me that the. rights of the parties are to be determined Upon facts which are not even casually adverted to in that opinion.
The action was brought to recover damages for the breach of contracts by which the defendants bound themselves to pay for certain work to be done and materials to be furnished by the plaintiff in fitting up part of a savings bank building in Albany. The materials and workmanship were to be to the satisfaction of an architect employed by the savings bank, and were to be paid for upon the presentation of the final certificate of that architect. The plaintiff’s *208theory of the action is that he is entitled to recover damages for the breach of the contracts, the defendants having wrongfully refused to allow him to go on to the complete fulfillment of such contracts. The breach by the defendants is alleged to have been such as relieved the plaintiff from the necessity of producing a certificate of the architect. It is well settled that, the refusal to permit a contractor to go on with his work is a virtual repudiation of the contract and gives him an immediate cause of action, and relieves him from the obligation to produce the certificate of an engineer or architect required by contract as a condition of payment. (Smith v. Wetmore, 167 N. Y. 234.) If the plaintiff, up to the time at which the defendants refused to accept the material he furnished,, had performed the terms of the contracts between the defendants and himself according to their mutual.. wider standing of what was to be one under those contracts, then the defendants are liable for the damages caused by their breach.. The matter in issue here is between the plaintiff and the defendants. The Albany Savings Bank, with which .the' defendants had contracted for the whole work of constructing the building, has nothing to do with that issue. By the contracts made between the plaintiff and the defendants, certain work was to be done and materials furnished according to plans and specifications. The plaintiff had almost completed the work under the contracts. Most of the manufactured material had been shipped to be put in place in the savings bank building, and a small part of it was ready.to be shipped. The plaintiff alleges that the work had been done and the material had been manufactured in accordance with the plans and specifications, and the evidence shows that the bulk of the manufactured material which had been delivered at Albany had been approved by the architect’s representative. The plaintiff claimed that all the materials furnished corresponded with ' the requirements of the plans and specifications. The defendants insisted that the work had been rejected because it was not in conformity with the contracts, plans and specifications. They denied that the architect had unreasonably refused to certify to the sufficiency of the work or materials, and alleged that the refusal to give a certificate was justified, and they undertook to show wherein the manufactured material-furnished by the plaintiff did not accord with the plans and specifications. In answer to that, the plaintiff showed *209by proof that the material, which had been rejected by the defendants in consequence of the action of the architect, was manufactured in accordance with the interpretation of the plans and specifications, as given by those authorized to act for the defendants in the absence of the architect.
Bearing in mind that we are considering these contracts only as between the parties to them, and that for all the purposes of this litigation the Albany Savings Bank is an absolute stranger to the contest, the situation of the parties on the record before us is the following: The plaintiff alleges substantial performance up to the time he was prevented by the defendants from further performance. The defendants justify their act- of prevention by saying that the material furnished up to the time they intervened to prevent did not accord with the plans and specifications, and that the architect, who was the arbiter, so decided. To which the plaintiff rejoined that the defendants, through their agents, gave a construction to the plans and specifications, in strict accordance with which construction the plaintiff went on and manufactured the material. By the contracts between the plaintiff and the defendants, the architect was to determine whether the work accorded with the plans and specifications, but that architect was a resident of Washington in the District of Columbia, and was not accessible when questions arose as to the manner in which the material to be furnished by the plaintiff under the contracts should be manufactured. The plans and specifications of the contracts had been drawn by the head of one of the departments of the defendants’ business, and the work to be done by the plaintiff was superintended by another skilled employee of the defendants. Questions arising during the progress of the work as to the proper method of manufacture of the material under the specifications, and doubt arising as to that method, the plaintiff, according to his testimony, called upon Mr. Lesser, one of the defendant copartnership, and was told by Mr. Lesser to follow the instructions or the interpretation of the plans and specifications that should be given to him by those two persons, namely, the head of the drafting department and the superintendent of the defendants’ business.
Therefore, there was in the case evidence, which the jury believed, *210that in the absence of the architect the plaintiff was required by the defendants to do the work in accordance with the interpretation of the plans and specifications given by the defendants’ agents, and when they came into accord as to the requirements of the plans and specifications there was nothing left to be referred to the architect. The subject presented is not one of modification of the contracts which would have to be pleaded, but of the agreed interpretation of the terms or requirements of the plans and specifications as they existed. If the defendants induced the plaintiff to go on with the work under those circumstances, they chose in that particular respect to determine for themselves what was required, and thus it became unnecessary to seek the judgment of the inaccessible architect, and there the plaintiff was authorized to go on in performance of the Work precisely as he did in executing the contract,
I think that the right of the plaintiff to recover is plain, and that the. judgment ought to be affirmed, with costs, .
Judgment and order reversed and new trial granted, with costs to appellants to abide event.