(125 Misc. Rep. 584)

(211 N.Y.S.)

HOHMAN et al. v. ROCHESTER SWISS LAUNDRY CO. et al.

(Supreme Court, Equity Term, Monroe County. July 6, 1925.)

Easements

(Syllabus by the Court.)

26(1)-Grant on condition held to cease when property sold to laundry company not authorized to carry on specified business. A grant of a right of way upon condition that it shall terminate when the property to which it attaches shall cease to be used "as a stable and yard for horses" in the business then carried on, which was a general carting business, ceases and becomes void when the property is sold to a laundry company not authorized to carry on such a business, and the property ceases to be used for a general carting business.

Action by William F. Hohman and another against the Rochester Swiss Laundry Company and another to cancel a right of way and for other relief. Judgment for plaintiffs.

Hubbell, Taylor, Goodwin & Moser, of Rochester, for plaintiffs. Joseph P. Hogan, of Rochester, for defendants.

RODENBECK, J. John F. Hilbert, John Weiss, and Frank W. Embry, constituting a copartnership engaged in the carting business, owned property fronting on Pinnacle avenue, now South Clinton street, westerly of and adjacent to property owned individually by John F. Hilbert and wife, fronting on Meigs street. A year prior to his death Hilbert opened a right of way from the partnership property through his property to Meigs street, and this right of way was used for about a year prior to his death by the copartnership. There was no grant by him to the copartnership of the right of way, and the copartnership's use of it was a mere license. After the death of Hilbert, his wife, Helen Hilbert, as executrix of the estate, conveyed to George F. Roth the one-third interest of her husband in the copartnership in which her husband was interested. This conveyance was made by her as executrix on October 1, 1886, and did not cover any interest in any property which had descended to her individually by operation of law. About two months after the execution of this deed, and on November 27, 1886, she conveyed to the copartnership, then consisting of John Weiss, Frank W. Embry, and George F. Roth, a right of way over the strip of land in question upon certain conditions.

This conveyance was made by her individually, as well as an executrix, and under it the copartnership obtained for the first time a legal interest in the right of way. The grant of the right of way is made upon the condition that it should cease if the premises then owned and occupied by the copartnership "as a stable and yard for horses and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

wagons" should cease to be "used by them in the business" then carried on by them, which was a general carting business. On March 5, 1892, Charles W. Weiss was admitted to the copartnership in place of his father, John Weiss, and on January 3, 1894, the business was incorporated as the Rochester Carting Company. On February 26, 1924, the Rochester Carting Company conveyed to the Rochester Swiss Laundry Company the premises owned by it on Clinton Avenue South. The Rochester Swiss Laundry Company is incorporated for the purpose of carrying on a laundry business, and has since the conveyance carried on such business, and the premises have not been used since the conveyance "as a stable and yard for horses and wagons" in the business of general carting, which was the business carried on by the former copartnership and its successor, the Rochester Carting Company. Under these circumstances, the condition under which the grant of the right of way was made has been broken, and the grant under its terms has ceased and become void, and the defendants have no right or interest in the right of way, or to the use thereof, and the same should be canceled.

There is no basis in the evidence for any reformation of the grant of the right of way, and judgment should be given the plaintiffs accordingly.

So ordered.

(213 App. Div. 658)

HYERS v. VICTORIAN REALTY CO., Inc., et al.

(Supreme Court, Appellate Division, First Department. July 6, 1925.) 1. Contracts -287 (2)—Payments on cost plus contract on architect's certificates held not conclusive as to actual cost against impeaching evidence.

Where owner made payments on contractor's requisitions and architect's certificates, under protest, on cost plus contract requiring semimonthly payments of 60 per cent. of cost of material and labor, and providing that nothing but final payment should be conclusive, certificates held not conclusive as to actual cost, as against impeaching evidence.

2. Contracts 322(4)-Burden of proving cost of altering building under cost plus contract held not sustained by contractor.

Evidence held insufficient to sustain burden on contractor of proving cost of altering building under cost plus contract, and that his claim for over $66,000 was reasonable, where he originally estimated that work would not cost more than $29,000.

Appeal from Special Term, New York County.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(211 N.Y.S.)

Action by John S. Hyers against the Victorian Realty Company, Inc., and others. From a judgment foreclosing a mechanic's lien for $30,436.66, after a trial before a referee, defendants appeal. Reversed, and new trial ordered.

Argued before CLARKE, P. J., and DOWLING, MERRELL, McAVOY, and BURR, JJ.

Ferris & Ansbacher, of New York City (Jacob Ansbacher, of New York City, of counsel), for appellants.

Godfrey & Marx, of New York City (Walter E. Godfrey, of New York City, of counsel, and Aaron H. Marx, of New York City, on the brief), for respondent and Beruroy, Inc., assignee.

MCAVOY, J. This was an action to foreclose a mechanic's lien, which was referred to a referee, who found in favor of the claimantlienor. Judgment was entered on his report for over $33,000.

The contract upon which the controversy arose was made to alter two small brownstone buildings, which were four-story and basement houses 39 feet wide and 61 feet deep. The arrangements for altering contemplated the raising of the basement and first floor to make a new first floor, to contain stores, with an extension in the rear of both houses, and with alterations on the third, fourth, and fifth floors to constitute two separate apartments on each floor, with a new iron stairway to the third floor, new store fronts, and new plumbing, and electrical, paint, and plastering work, etc. The contractor originally estimated that this would not cost more than $29,000. Thereafter the extension item was eliminated, and changes in the upper floors, consisting of two inside partitions and plumbing on the third, fourth, and fifth floors, were made, and two one-room apartments were installed on the second floor. There were also some additional matters incidental to the completion of the work done. The referee found that the total cost aggregated $66,166.11, which constituted nearly $40,000 beyond the original estimate, and this for changes which were of comparatively minor importance.

[1, 2] The contracts were on a cost plus 15 per cent. basis. There was no agreement on the part of the builder to keep within the $29,000 already estimated. The estimate was merely allowed in proof as in the nature of an admission, indicating excessive cost in the final result. No direct testimony was given with respect to the cost of these alterations by any person connected with the actual installation and carrying out of the work. One Hyers testified that he was present on the job about half an hour each day, and not there on every day. He is the plaintiff in this action, and he gave a description from the plans and specifications of the amount of the work done during the period

that the construction was proceeding. Neither did the architect give any direct testimony with respect to the amount of work done or materials furnished, nor any specified proof indicating the value of such items of work done or such materials furnished. Nor was the foreman or superintendent actually in charge of the job produced as a witness to prove the installation of materials and the amount of labor. Plaintiff also omitted the production of any delivery sheets, cost accounts, or vouchers. The plaintiff relied in part for his proof of cost on the production of certain subcontracts for the making of the alterations which he had made with other contractors. The total cost of these subcontracts was the sum of $11,068. None of the subcontractors were produced to indicate that the cost of material and labor furnished by them was actually the cost of such items.

Plaintiff's main reliance, however, seems to rest upon requisitions which plaintiff made during the construction under the terms of the contract for 60 per cent. payments on account of the work done, which payments were to be made pursuant to architect's certificates, which set forth his estimates of the amount of such work. He claims that these are conclusive as establishing the cost of the work, and are not capable of being overcome, except by impeachment of their validity through a showing of fraud or collusion on the part of defendants. The contract, however, does not make any provision that these requisitions, based upon the alleged certificates, shall be final. The provision in respect to partial payments of 60 per cent. during the progress of the work is as follows:

*

"Article 3. The owner agrees to pay the contractor in current funds for the performance of the contract. On the 15th and 30th day of each month 60 per cent. of the value, proportionate to the amount of the contract, of labor and materials incorporated in the work at building No. 683 Madison Ave., city, up to the 15th and 30th day of that month, as estimated by the architect, plus 15 per cent. of such amounts, less the aggregate of previous payments. On substantial completion of the entire work, provided the work be fully completed and the contract fully performed, the balance due under the contract, amounting to 40 per cent. of the cost of this alteration plus 15 per cent. shall be paid in three equal notes bearing 6 per cent. interest for 30 days, 60 days and 90 days from date of final completion. Said notes shall be made out by the Victorian Realty Company and Camas Bros., and shall be indorsed by Victorian Realty Company, Camas Bros., and Victor and Alexander Camas, individually. Said notes will not be considered as payment in full until they are paid under dates due."

These requisitions offered in evidence were objected to, but were received and are apparently the basis of the referee's findings as to the cost of labor and material, to which 15 per cent. thereof is added to make the total cost of construction of the building. Whatever effect requisitions would have when accompanied by an itemized statement of the time expended by the different mechanics in carrying out the

(211 N.Y.S.)

Besides,

work, and vouchers showing the delivery of all the materials for which payment was required, and an itemization of their cost, these requisitions were insufficient, since there was no ground for a finding therefrom of an acquiescence by the defendants, from their receipt and payment, that such requisitions contained reasonable costs. testimony was given, as affecting their accuracy, that a witness visited. the premises and found that the plaintiff was charging for bricklayers, when there were no bricklayers working on the job, and the architect who drew these certificates admitted he certified for work and materials that were never done or installed. The entire work connected with the extension which was originally provided for in the specifications was ultimately eliminated, but the architect nevertheless certified alleged work and materials in connection with this extension. In his examination he was asked:

'Q. Have you any idea of the approximate amount of money that you claim was paid by Hyers for work done on the extension? A. I haven't any idea.

"Q. But, whatever it was, you certified that it was proper to be paid? A. Yes, sir.

66

"Q. Did you ever certify for the payment of any moneys for the skylight, for instance? A. Yes.

"'Q. You don't know whether they had actually constructed the skylight? A. No, sir."

It was also apparent from the proof that there was no acquiescence in the items of the requisitions during their presentation, but that they were continually protested against by the defendant Camas. He claimed on occasions that he was being overcharged. When he was asked why he did not stop paying, when Hyers would not give vouchers of the material furnished and would not carry on the operation properly, the fendant witness said that Hyers stated he would drop the job if he stopped paying. Hyers also stated that he would give the attorney for the lenders, who were financing this project, who protested also at the lack of information afforded, such items as he wished, or he would be through with the operation.

It is obvious that no consent to accept the figures received in these requisitions for the 60 per cent. payments should be the basis of any finding of actual cost of construction in any labor performed and material furnished. That the total sum of $66,000 for the completion of the work as made out by these estimates was excessive and improper, in the nature of the work, for labor and material, is also indicated by the testimony of two builders, whose appraisement of the approximate cost of construction for what was actually done in this alteration job was about $42,000. The referee evidently concluded, as his opinion indicates, that since the contract called for cash payments of 60 per cent. balance to be paid in notes, and since a certification by the archi