Weeks v. . O'Brien
New York Court of Appeals
Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made January 8,18j)l5 which affirmed a judgment in favor of defend•ant entered upon a decision of the court dismissing the complaint on trial at Circuit. This action was brought to recover the last installment under a building contract entered into by plaintiff with Ellen ■O’Brien, defendant’s testatrix.
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Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made January 8,18j)l5 which affirmed a judgment in favor of defend•ant entered upon a decision of the court dismissing the complaint on trial at Circuit. This action was brought to recover the last installment under a building contract entered into by plaintiff with Ellen ■O’Brien, defendant’s testatrix. The contract provided for the payment of the contract price in specified installments from time to time as the work progressed • the last installment upon its completion “ provided a…
1Per curiam
The complaint was dismissed on the ground that it contained no averment that the architect unreasonably withheld his certificate of the completion of the building. The complaint was defective in this respect. By the true construction of the building contract the procuring by the plaintiff of the certificate of the architect that the building had been completed, was a condition precedent to his right to recover under the contract the last installment of $6,158, for which this action is brought. To meet this condition and to show a right of action it should have been averred in the complaint,…
2Cases cited1 opinion
- Thomas v. . FleuryNew York Court of Appeals · 1862
3Cited by49 opinions
- Kelly v. . Security Mutual Life Ins. Co.New York Court of Appeals · 1906
- Murphy v. WilliamsTexas Supreme Court · 1910
- Ringle v. . Wallis Iron WorksNew York Court of Appeals · 1896
- Floyd v. PughSupreme Court of Alabama · 1917
- Smith v. . WetmoreNew York Court of Appeals · 1901
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