witnesses, but everything else which is legally submitted to a court as a means of ascertaining the truth of any alleged matter of fact under investigation, as deeds, letters, contracts, etc. sult Webster, Imp. Dict., and Burrill's Law Dict., ad his verbis. Hence the necessity of the use of the broader word prescribed, as was well illustrated in the case first cited, where a number of exhibits were left out of the case, and yet it contained a certificate as to all the testimony being in. The usual form is that the case contains "all of the evidence material to the question sought to be reviewed." Baylies, New Trials, 573. In Sewing Machine Co. v. Best, 50 Hun, at page 79, 4 N. Y. Supp. 510, it was said:

"Where a question of fact is sought to be reviewed, it should be stated in the case that it contains all the evidence, or all bearing upon the question of fact sought to be reviewed.".

The certificate under consideration substantially complies with this rule. The questions of fact before the court for review arise because of the refusals of the referee to find as requested by the defendant, and the exceptions taken to such refusals, and the certificate conforms to what was said by Macomber, J., in Clark v. Swift, (Sup.) 14 N. Y. Supp. 61:

"Under section 993 of the Code of Civil Procedure it is the duty of the party, where there is conflicting evidence, to request a finding in accordance with the contention of the party, and, in case of its refusal to find such request, it would be the duty of the appellate court to look carefully into the evidence, and to determine whether or not the conclusion reached by the referee was correct."

"Section 992 of the Code of Civil Procedure in terms precludes exceptions to findings of fact as such; but section 993 declares a finding of fact which is without any evidence tending to sustain it, or a refusal to make any finding reasonably requested, to be a ruling upon a question of law, and subject to exception as such, under section 992; from which it results that the only mode of reviewing a finding of fact of a court or referee, as being against the weight of evidence, is by means of a request to find and an exception to the refusal to find as requested." Hugg v. Shank, (Sup.) 4 N. Y. Supp. 929.

But if there were no statement that all the evidence upon the question sought to be reviewed was contained in the case, it would still be open to the court to determine that there was no evidence to support any finding of fact duly excepted to. Sewing Machine Co. v. Best, supra; Halpin v. Insurance Co., 118 N. Y. 172, 23 N. E. Rep. 482, where it was said:

"A statement that all the evidence given on the trial is contained in the case is not essential to present for review in this court a finding alleged to be without evidence to sustain it. The appellant is therefore correct in his claim that the finding excepted to is properly before the court for review, and we must assume that all the evidence introduced on the trial, and bearing upon the fact of occupancy, has been inserted in the case."

We therefore think we are bound to review the facts as presented by the case, and to determine whether or not the referee's findings are in accordance with them.

The complaint sets up the contract between the parties and the order of payment, and that every payment was conditional

v.25N.Y.s.no.2-7

upon a certificate of the architect that the work had been done to his satisfaction, alleges that certain extra work had been done, and that the architect had certified that all of the work had been done to his satisfaction, and then sets out the balance due, less certain payments made by the defendant to certain material men. The amended answer denies the value of the work, and also that the certificates. had been obtained from the architect, or that he had certified that the work had been done to his satisfaction, as required by the contract, and, on the other hand, alleged that the work was defective in specified details, and inferior in quality, and then attacks the validity of the certificates made by one Smith, an assistant of the architect, and not by the architect himself, or by his authority. A second defense is also set up which it is not here necessary to notice. The contract is very strong along the line that all of the work should be done to the satisfaction, and under the direction, of the architect, and that his certificate should be essential to a payment, and it makes him the sole arbiter as to the regularity, propriety, and value of the work, and consequently brings the case within Glacius v. Black, 50 N. Y. 145. Where a person is made the sole and only arbiter of a contract, his decision is necessary before an action at law may be maintained. And the chief question in this case is as to whether or not the certificates signed, "George A. Freeman, Jr., by W. Holman Smith," are such certificates as the contract called for, and whether or not supervision by the architect, and the production of certificates signed by him or by his authority, nad been waived, and that of his assistant, and certificates given by him, were accepted in lieu. As before stated, the contracts were strongly drawn so as to secure the supervision and certificates of the architect; yet respondent contends that all this was waived, because the architect did but little, if any, supervision of the work to appellant's knowledge, and that payments were made on the assistant's certificates in the form above stated. But the payments that were made were to be made, by the terms of the contract, when certain stages on the buildings were reached, and these stand on a different footing from the subsequent payments, which were only to be made when the buildings were completed to the satisfaction of the architect. It might well be that the defendant was content to pay, and believed he should make these payments when called for by the contract, and yet in no sense waive his right to the final completion according to the terms of the contract. The later certificates were not paid because, as defendant then claimed, the work was not properly done, and also because the certificates were not proper or valid ones; and he insisted, by letters and telegrams, that the architect, and not his assistant, should act in the premises. to these later certificates, the defendant promptly declined to receive or act on them, insisting on his right to the advice and judg ment of the architect himself, thus asserting the well-known principle, "delegatus non potest delegare." The plaintiff. himself tes

As

tified that about the 15th or 16th of September, 1882, he took the certificates after those calling for the first four payments, and handed them to the defendant, who looked them over, and handed them back, refusing to take them. The defendant said he would take advice, and subsequently the plaintiff and defendant had a consultation with their counsel. As the claim in this action is based on these subsequent certificates, the evidence that the assistant acted as superintendent under the architect of the buildings is not sufficient, in our opinion, to warrant a finding of fact that the defendant acquiesced in or waived the final certificates of the architect himself. On the contrary, he promptly refused to pay the amounts called for by them. There is no evidence of any ratification, consent, or acquiescence on the part of the defendant in the acts of the architect's assistant. But, again, there is a failure of any satisfactory proof that the architect in any way authorized the giving of the final certificates by his assistant. He himself testified:

"I did not know anything about the others [1. e. the later certificates] being given. I never in any instance authorized Mr. Smith to sign my name to those certificates. I can only state that I knew nothing about the final certificates being given. I knew, before they were given, that Smith had given out some of these certificates. I knew McEntyre had money as the work went on, but I never knew about the final certificates, and I never authorized Mr. Smith to sign any certificate for me,"

-And this he repeats emphatically. Hence there was an entire failure of compliance with a condition precedent to requiring payment, and we find no evidence which would lead us to the conclusion that the condition had been waived by the defendant. Certainly, the payments made under the first four certificates, under the circumstances, do not warrant such a result. Even if defendant had full knowledge that these first certificates were given without the architect's authority, this would not warrant such a conclusion. Mere payment under such circumstances, even without the production of any certificate, would have been no waiver of defendant's right to require subsequent certificates, which he certainly did. Barton v. Hermann, 11 Abb. Pr. (N. S.) 378; Haden v. Coleman, 42 N. Y. Super. Ct. 256.

We also think the objections to the work as done by plaintiff were well founded, and the demand for the certificates was not a mere pretext. The referee has found a considerable number of distinct variations, changes, and omissions from the designs, some of which, it is true, are not of much importance or of great value, but others are more material, as, for instance, the style of ornamentation, etc. Respondent contends that although the ornamentation in the way of paneling, railings, and cornices, was not as elaborate as required by the specifications, yet that is not a matter of substance, and that ornamentation is merely added to, and not a part of, the house, quite forgetting that any true or tasteful ornamentation must at least appear to be a part of the construction, and not a mere addition. It is quite true such a house might as well protect one from the elements as a more highly

ornamented one; yet just in the ornamentation is a great part of the pleasure many cultivated people take in their dwellings, and one has a right to get what he bargains for, and what the party of the second part agrees to deliver, or there would be no force in contracts. As all these questions are fairly raised in the case, we think the judgment should be reversed, and a new trial ordered; costs and disbursements of this appeal to the appellant, to abide the event. All concur.

(5 Misc. Rep. 215.)

REYNOLDS et al. v. PATTEN.

(Common Pleas of New York City and County, General Term. October 2, 1893.)

MECHANICS' LIENS-MATERIAL MEN-APPLICATION OF PAYMENTS.

Where a payment is made on the aggregate of the balances due under several building contracts, but is not applied by either the owner or the contractor to any particular portion of such aggregate sum, it will be presumed that the parties intended to apply it to the several balances, in the order in which they beame payable; and therefore one who furnished the contractor with materials for the building on which the last balance became due, and who filed his notice of lien after such payment, is entitled to a lien on such building so far as the balance due the contractor therefor has not been satisfied after such application of the payment to the contractor.

Appeal from city court, general term.

Action by Martin Reynolds and Philip F. Donohue against Thomas Patten as owner, and James J. Fleming as contractor, to foreclose a mechanic's lien claimed by the plaintiffs pursuant to the provisions of the mechanic's lien law (Laws 1885, c. 342) for the unpaid balance of the purchase price of certain materials sold to the contractor, and alleged to have been used by him in making alterations under a contract with the owner. From a judgment of the general term of the city court (23 N. Y. Supp. 1164) affirming a judgment in favor of defendant Patten, plaintiffs appeal. Reversed.

Argued before BOOKSTAVER, BISCHOFF, and PRYOR, JJ. Johnston & Johnston, (Edward W. S. Johnston, of counsel,) for appellants.

Deyo, Duer & Bauerdorf, (Robert E. Deyo, of counsel,) for respondent.

BISCHOFF, J. Assuming consistently with the referee's finding that defendant Fleming was not entitled to a charge of five dollars per day for his own services pursuant to the terms of his several contracts with defendant Patten, it still appears from respondent's own showing and admissions that the referee's conclusion that at the time of the filing of plaintiffs' notice of lien Patten had paid Fleming in full for the work done on the EightySixth street houses, and that there was nothing owing from the

former to the latter, is contrary to the evidence: Hence the judgment is erroneous, and must be reversed.

It was conceded on the trial, and is now conceded by respondent, that, excepting the items for overcharges and improper charges hereinafter mentioned, Fleming's bill of $2,055.89 correctly represented the balance of Patten's indebtedness to him for the work done under the several contracts between them. On account of this balance, Patten paid, and Fleming received, $1,200, thus reducing it to $885.89. Patten claimed that the balance was excessive by $376.72 for overcharges for materials used and $85.65 for materials which were not used. Crediting Patten with each of these two last-mentioned items, there still remained owing from him $393.52, which respondent's counsel as well as the referee dissipate by deducting from the $2,055.89 balance two additional items admittedly included therein, namely, $366.57, due Fleming for the Pleasure Bay job. Hence they say there was nothing due Fleming from Patten on the Eighty-Sixth street job when plaintiffs filed their notice claiming a lien on the last-mentioned houses. That this method of disposing of plaintiffs' lien is unauthorized is apparent. Plaintiffs were dealers in plumbers' materials under the firm name of M. Reynolds & Co., and brought this action against Fleming, the contractor, and Patten, the owner, to foreclose a lien claimed by them under the provisions of the mechanic's lien law (Laws 1885, c. 342) upon three houses in East Eighty-Sixth street in the city of New York for an unpaid balance of the purchase price of certain plumbers' materials which were sold and furnished to Fleming, and alleged to have been used by the latter in making alterations and improvements in the Eighty-Sixth street houses under a contract with Patten. The validity of the lien, therefore, was dependent upon the fact that when the notice of its claim was filed there was a sum owing from Patten to Fleming, and whether there was or not was substantially the only matter in dispute on the hearing before the referee. The undisputed facts which transpired on the hearing and are conceded by respondent were that Fleming was employed by Patten upon three distinct and independent jobs under several contracts, and calling for work at as many different places. The first was for work at Pleasure Bay, the next in Eighty-Eighth street, and the last in Eighty-Sixth street. Both the Pleasure Bay and the Eighty-Eighth street jobs were completed before the Eighty-Sixth street job, and, there being no evidence to the contrary, it must be assumed that Fleming was entitled to payment as soon as his contracts were performed. After all three jobs were completed, Fleming presented his bill showing an aggregate balance amounting to $2,055.89 due him therefor from Patten. This, as herein before stated, is conceded to have correctly represented Patten's entire indebtedness at the time for the balance remaining unpaid upon the three jobs, except as to $376.72 for overcharges and $85.65 for improper charges, both of which refer exclusively to the Eighty-Sixth street job. The aggregate balance included a balance amounting to