No certificate of the engineer was procured. There have been two trials of this action. On the last one plaintiff testified that he had asked the engineer for a certificate as often as once a week for two months.

W. J. Groo, for app'lts; L. Laflin Kellogg, for resp't.

LARREMORE, Ch. J.-This case has been once tried and appealed to the court of appeals. The report of it in that court, Byron v. Low, 109 N. Y., 291; 14 N. Y. State Rep., 823, contains a statement of the facts. The appellants claim that on this new trial the objection which led to the reversal before has not been obviated. But I am of opinion that the testimony of plaintiff at folios 168 to 172 inclusive makes out a prima facie case of a demand for the certificate from the chief engineer, as required by the contract. Plaintiff's direct testimony on the former trial on this point is not given, but we scarcely think appellants' contention that it was substantially the same as on the present trial can be correct. His former cross-examination, which was read on this trial, may all stand consistently enough with the direct evidence of a demand for the certificate itself which is now given. There is other evidence from which the jury might have and did conclude that the certificate had been unreasonably refused. The case would, therefore, be analogous to the unwarrantable withholding by an architect, from a contractor, of a certificate of the completion of his contract. The contractor must, as a condition precedent to recovery at law, either produce the architect's certificate, or satisfactorily account for its absence. Similarly, in the case at bar, facts were shown from which the jury might infer that the engineer's certificate was kept back without just cause for an unreasonable length of time. Even under the decision of the court of last resort, therefore, we think the jury were authorized to find that the condition precedent had been complied with, and that plaintiff was not bound to wait longer before proceeding to enforce his rights, especially in view of the fact that defendant was about to depart from the country.

Many of the exceptions to rulings upon the trial we do not deem of any serious consequence. The contract provided that the work should be executed and performed under the direction of the chief engineer, or his assistants, by whose measurements and calculations the quantities and amounts of the several kinds of work performed should be determined. But certainly that could not preclude the testimony of other experts in a suit to enforce plaintiff's rights. We do not think the contract obliged plaintiff to submit to the chief engineer's decision and allowance without the right of appeal to the court, if the former claimed that he was fraudulently or unjustly dealt with. And if under any circumstances he was entitled to sue, it goes without saying he had the right to call witnesses such as the assistant engineers Truesdell and Coons, to prove the nature, extent and value of the work. This exception was not well taken.

Considerable evidence was excepted to because it was alleged to relate to transactions with the original defendant, now deceased,

but none of such exceptions seemed valid. Many of the answers complained of do not as a matter fact relate either to conversations" or "transactions" with the deceased, and such of them as may seem impliedly to do so come within the exception to the rule, made a part of the rule itself by § 829 of the Code. The testimony of the deceased defendant on the former trial was read on behalf of the defense here, and plaintiff, therefore, became entitled to give his version orally of the matters therein referred to.

The rulings as to the testimony of the said deceased, excluding a considerable portion of it, seem from the printed record rather strict, but they were within the discretion of the trial judge. In the ruling especially complained of, at folios 520, 521, 522, much of the long answer was clearly irresponsive, as the court held, and, moreover, it contained conclusions and calculations.

Nevertheless, we are constrained to hold that the exclusion of certain questions put to the witness, Daniel H. Wood, constituted error, which will require a reversal. The plaintiff had testified as to the amount and value of the work alleged to have been done by him under the contract, from a statement he had made, and the same was offered and received in evidence without objection as to that method of proof. (Exhibit J.) When Mr. Wood went on the stand, this paper was shown to him, and he was asked to state what deductions should be made from the amount. This question was objected to, and excluded. The following question was also put, with a similar ruling:

"Q. What proportion of the 365 51-100 yards of rip-rap wall that Byron has estimated at a dollar and a half a yard, what proportion of it should be at a dollar a vard?

This question was put to Mr. Wood later on, and excluded: "Q. From what you saw there on the ground at Indian Ladder Bluff, what amount of rock in your opinion was taken out, outside of the slopes, as provided for in the contract and specifications?"

The contract provided that the plaintiff should be paid "for rock cut at Indian Ladder Bluff, one dollar and twenty-five cents per cubic yard," and a portion of the judgment rendered depends upon the jury's estimate of how much of such rock was actually cut. It must be remembered that the contract did not specify a gross sum for plaintiff's compensation, but merely rates for different kinds of work; and, therefore, both from the very nature of the agreement, and because directly raised by the answer, the amounts and kinds of work actually performed were at issue. This witness, Mr. Wood, was not only the chief engineer of the New York & Scranton Construction Company, but by the contract itself he was "appointed a common arbiter, to whom all and every question of difference between the parties, growing out of this contract, shall be referred, and whose decision shall be final and binding upon both parties." Certainly, he was a competent expert upon all these matters upon which his testimony was excluded, and such testimony would have been very relevant for the defense. It was a serious error not to allow him to testify as to the facts, as it would have been if the court under defendant's

objections had rejected the evidence of the assistant engineers, Truesdell and Coons. Defendants were in effect deprived of the evidence of their principal witness on a most important branch of the controversy. I cannot discover that this error was in any manner cured, and there is no alternative but to order a new trial.

Judgment reversed, new trial ordered, with costs to abide the

event.

BOOKSTAVER, J., concurs.

JAMES C. FRENCH et al., App'lts, v. JOHN GEORGE BAUER et al., Resp❜ts.

(New York Common Pleas, General Term, Filed June 16, 1890.) MECHANIC'S LIENS-NOTICE BY SUB-CONTRACTOR.

One S. had a contract with defendant B. to erect a house, for which he was to be paid in six instalments, the fifth of which was to be paid when the cellar was concreted and the sidewalk and exterior iron and stone work completed. S. contracted with F. & B. to do the iron work, and they contracted with plaintiff to do a portion thereof. This work being completed B. paid S. the fifth instalment, and the latter paid F. & B., both acting in good faith. F. & B. made an assignment, and plaintiffs thereafter filed a lien for their work. Held, that the lien could only attach to what was due, or to become due, to F. & B., and as that was paid in good faith, there was nothing to which the lien could attach; that they should have filed their lien in time to anticipate the fifth instalment, and that no claim could be made, under the terms of the contract, to the sixth instalment.

APPEAL from a judgment entered on the verdict of a jury in the district court of the city of New York for the tenth judicial district.

E. D. McCarthy, for app'lts; J. R. Angell, for resp'ts.

BOOKSTAVER, J.-The action was brought to foreclose a mechanic's lien filed against the premises 3467 Third avenue in this city.

The defendant Bauer was the owner of the lot, and the defendant Peter Spoonheimer entered into a contract with him to erect and fully complete a building thereon, for which he was to be paid in six instalments. The fifth instalment was to become due when the cellar was concreted and the sidewalk and all exterior iron and stone work was completed.

Spoonheimer contracted with the firm of Findley & Bowman to do all the iron work required on the building and the sidewalk, and the plaintiffs, on or about the 13th of October, 1888, contracted with Findley & Bowman to put down all the patent light frames and tiles required by Spoonheimer's contract for the sum of $100. Plaintiffs performed their contract on or before the 24th of October, 1888. All the stone work and exterior iron work had been fully completed before the 29th of October, 1888, and on that day the architect gave his certificate to that effect, and on the same day the defendant Bauer paid the defendant Spoonheimer the fifth instalment due.

On the 2d of November, 1888, Spoonheimer and Findley &

Bowman had a settlement and adjustment of their matters, and on that day the former gave a check, dated November 5th, for the balance due the latter, and they gave him a receipt in full dated on the last day named. The check thus given was cashed on the same or the following day and paid by Spoonheimer's bank when it was presented.

On the 3rd of November Findley & Bowman made an assignment, and on the 7th of November one of the plaintiffs had an interview with Mr. Bauer and Mr. Spoonheimer and asked payment of his claim; he was told that Findley & Bowman had been paid in full, and also that they had made an assignment, as they had learned from the papers. On the 9th of the same month plaintiffs filed the lien which this action is brought to foreclose. At that time the last instalment of $1,000 had not been paid to Spoonheimer, nor was it then due. Notice of the lien was also served on Bauer.

All the foregoing facts appeared on the trial, and the attention of the jury was sharply called by the charge of the court, strongly in favor of plaintiffs, to the question of the good faith of the fifth payment and also of Spoonheimer's payment to Findley & Bowman, and the jury, on what we consider sufficient evidence, found in favor of the defendants. So the fact that Bauer did not make the fifth payment before its maturity and that Spoonheimer made his final payment to Findley & Bowman in good faith, we must regard as established beyond controversy.

Appellants contend that notwithstanding these facts, inasmuch as there still remained $1,000 of the contract price to be paid by Bauer to Spoonheimer for the work not then completed, they should have been paid out of that, claiming that the contract price is a common fund out of which all liens should be paid.

But by the terms of the contract between the defendants Bauer was required to make the fifth payment when the cellar was concreted and the sidewalk and all exterior iron and stonework completed. This was all done on the 29th of October, and as no lien had then been filed by plaintiffs, Bauer paid, as in duty bound, the whole amount of that instalment to Spoonheimer. And the latter, as the jury have found, paid Findley & Bowman in good faith all that remained due them on or before the 5th of November.

The plaintiffs did not file their lien until the 9th of that month, and of course acquired no lien before that time. When they did file their notice of lien, it could only attach what was due or to become due to Findley & Bowman, Lumbard v. Syracuse, etc., R. R. Co., 55 N. Y., 491, and there was nothing then due or to become due them, so nothing was attached. There was no privity of contract between the plaintiffs and the defendant Spoonheimer; the former contracted with Findley & Bowman, and if plaintiffs did not rely upon the responsibility of that firm, but upon the lien given by the statute, it was their duty to have examined not only Findley & Bowman's contract, but also the contract between the defendants, to ascertain the terms of payment, and then they should have filed their lien in time to have anticipated the fifth

payment. See Hagan v. Amer. Baptist, etc., Soc., 14 Daly, 131; 6 N. Y. State Rep., 212, where this question is fully discussed, and authorities cited.

Appellants' contention, if sustained, would work a great injustice to the principal contractor Spoonheimer, for the law of 1885, chap. 342, 1, expressly provides the owner shall be liable to pay no greater sum than the price stipulated to be paid in the contract, and the mere fact that he saw one of the plaintiffs doing some work there would not alter his liability in this respect, as he had not contracted with him. The principal contractor would therefore be the only one who would have to pay the claim; but he had contracted for this work with Findley & Bowman, and not with the plaintiffs. He in good faith paid that firm for this very work without any notice given by plaintiffs of their claim, and it would be unjust to compel him to pay for the same work twice. It is not the duty of the contractor to hunt up every one who may have worked for or furnished materials to a sub-contractor, and ascertain whether they have been paid; it is their duty to give him the notice required by law in order to bind him. The cases cited by the appellants do not support their contention, but each one of them recognizes the principle herein set forth. The judgment should, therefore, be affirmed, with costs. LARREMORE, Ch. J., concurs.

MARGARET RIORDAN, Adm'rx, Resp't, v. THE OCEAN STEAMSHIP COMPANY, App'lt.

(New York Common Pleas, General Term, Filed June 16, 1890.)

1. NEGLIGENCE-CONTRIBUTORY-CHARGE.

Plaintiff's intestate was engaged in loading freight on one of defendant's vessels. He, with three others, got upon the elevator used for that purpose, and which was seven feet long and four wide, to ascend from the hold for dinner. He was caught between the elevator and hatchway, and received injuries which resulted in his death. The elevator and machinery were in good order. The court charged that "if deceased was rightfully on the elevator at the time of his injury, in the absence of the testimony of an eye witness of the accident, the jury might assume that he received his injury in the performance of his duty, and had not omitted the precautions which a prudent man would take in the presence of known danger." Held, error.

2. SAME-MASTER AND SERVANT.

The fact that no man was employed to look into the hold to see if the elevator was free and the men in proper position, does not charge the master with negligence; the law does not require a master to furnish a watchman to look after a servant to see that with a safe appliance he does not put himself in a place of danger.

APPEAL from a judgment entered on the verdict of a jury at trial term, and from an order denying a motion for a new trial. Nathan Bijur, for app'lt; George William Hart, Jr., for resp't.

BOOKSTAVER, J.-The action was brought by the plaintiff as administratrix of Michael Riordan, who was killed on the 31st of January, 1888, while in the employment of the defendant. On that day the steamer "Chattahoochee" was lying at her dock in