These parties entered into a contract whereby plaintiff agreed to excavate and remove earth and rock from twelve city lots belonging to defendant, at one dollar and sixty cents per cubic yard for rock, and eighty cents for earth, and the contract provided that “ the measurements shall be made by Robert A. Serrell, city surveyor, and the payments shall be on his written certificate,” and that the defendant “ will pay for said work at said prices on the certificate of said surveyor.” Reappears that defendant, without any question, made seven payments on the several certificates of this surveyor, which were presented to him by plaintiff, but refused to make the eighth and final payment, although plaintiff presented to him the certificate of the surveyor as to the number of yards of earth and rock which had been excavated on the premises, and which certificate is as follows :
“New York, April 28, 1891.
“ The amount of earth and rock now excavated and removed according to sizes in contract from off of lots on north side of
“ROBERT A. SERRELL, City Surveyor.
“ To A. G. Pucci, Excavator.
“ C. T. Barney, Owner .”
The cost of excavating this rock and earth at the prices agreed to in the contract would respectively amount to $15,812.80 and $4,484, making $20,296.80 upon account of which plaintiff admits payments aggregating $19,051.60, and brings this action for $1,245.20, the balance. The answer admitted these payments on account, but alleged that defendant had thereby overpaid the sum of $767.14, and counterclaimed for the same, on the ground that plaintiff had not excavated so much rock and earth as the surveyor had certified that he had. The serious objections of the appellant on this appeal are based upon the ground that the admission on behalf of plaintiff of the foregoing certificate of the surveyor made as provided for in the contract, did not throw upon defendant the burden of proving that this certificate was untrue and incorrect as he had alleged in his answer. It was he who had assailed the certificate and challenged its truth and correctness and not the plaintiff, who in obtaining the same, had done all that by the contract he was required to do to entitle him to payment, subject of course, to defendant’s right to show that the same was obtained in fraud or by mistake. The defendant had recognized the full force of this provision of the contract, for he had already made seven payments upon the presentation by plaintiff of the surveyor’s certificates. The defendant alleged that the certificate was untrue and incorrect and he certainly should know whether his allegation is true and correct, and if so, he is called upon to substantiate it by proof, and not the plaintiff, for he certainly had made out aprima facie case when the contract and surveyor’s certificate had been admitted in evidence. If this is not the effect of the agreement, then it was one-sided, for the defendant’s surveyor
Judgment appealed from affirmed with costs.
Ehrlich, Ch. J., and McCarthy, J., concur.
Judgment affirmed.