Devlin v. City of New York

Ingraham, J. (concurring) :

I concur with Mr. Justice Clarke that if there was any evidence that the failure of the city’s engineer to give .a certificate was either fraudulent, arbitrary or unreasonable, there would be a question for the jury; but I am in favor of reversing the judgment upon the ground that there was no evidence to sustain, a finding that the refusal of the engineer to give to the plaintiff the certificate which would entitle him to an ad interim payment was either fraudulent, arbitrary or unreasonable. As these certificates are not to be made by strict measurement, but may be made by the engineer by “ measurement or by estimation, or partly by one and partly by the other, and it shall be' sufficient if they are approximate only, and estimates strictly so-called,” it is necessarily the judgment pf the engineer as to the amount of work completed that the parties agree shall determine his action. While it- may be easy to imagine a case where the amount of work has been so great that no engineer could in good faith refuse to make an estimate and give a certificate that at least $7,000 worth of work under the contract-had been performed *192so as to justify a finding that the refusal to give a- certificate was arbitrary and unreasonable, there is nothing in this evidence to justify a finding that the amount of work performed by the plaintiff was so clearly in excess of $7,000 that the éngineer could not in good faith determine that it did not equal that amount. The fact that subsequently -exact measmuments disclosed that mere .than , $7,000 worth of work had been performed was not sufficient .of itself to sustain a finding that such an amount had actually been performed that it w.as arbitrary or unreasonable to refuse a certificate. No amount was due.under the .contract until such a certificate had been given. ■ There was, therefore, no breach, of the contract because of a refusal to pay any sum of money due to'tlié' plaintiff under it. The only breach of. the contract that would justify the plaintiff in abandoning the work was proof that, the engineer had fraudulently,- arbitrarily or unreasonably refused to give & certificate which the contract required that he should give; and where bv the express terms of the contract the question as to whether or not the certificate should be -given was necessarily left to the judgment and discretion off the engineer, more is required than- to show that the amount of work done would have justified a certificáté. , Facts must appear to justify a finding that the determination of the engineer was not an honest exercise of his judgment, hut was arbitrary, fraudulent or unreasonable. "Upon this evidence^ therefore, I think the plaintiff proved no cause of action, and the complaint should have been dismissed,

Judgment reversed, new trial ordered, costs to appellant to abide . event. .