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presence, and that the light was not turned on that night. But we do not consider these facts of much importance, because, as already appears, up to the time of the explosion no light was necessary, except to show the way to the tank, which, after his 18 months' experience, must have been very familiar to the plaintiff, and plainly did not require that his lantern should be presented at the very opening of the tank.

We are of the opinion, therefore, that the question in the case is narrowed down to the first of the grounds above enumerated upon which negligence is alleged against the defendant, viz. the failure to give the plaintiff necessary instructions as to the dangers to be guarded against in the performance of his duties, and especially in the use of a lantern in proximity to the paraffine tanks. And in this respect it seems to us that the verdict, which charges the defendant with culpable negligence which was the producing cause of the accident in question, was against the law and the facts of the case as it was made on the trial under review. In the first place, it is to be observed that the defendant was not required to exercise the highest possible diligence to instruct the plaintiff in every conceivable particular of the circumstances in which he might be placed, or in every possible detail of his conduct in the performance of his duties. The requirement in this respect is only that the master exercise ordinary and reasonable care to see that the servant possesses a competent knowledge of the peculiar dangers to which he is exposed in doing his work, and of the precautions necessary to be taken to guard himself against those dangers; and in the exercise of that care the master has the right to assume that the servant brings to the work ordinary intelligence and powers of observation, and the capacity to learn something from observation and experience. De Forest v. Jewett, 23 Hun, 490, 493, affirmed 88 N. Y. 264. Moreover, the duty to instruct against dangers incident to the work extends only to such dangers as are known to the master himself, or which are reasonably to be apprehended from the nature of the employment. Devlin v. Smith, 89 N. Y. 470, 476; Stringham v. Hilton, 111 N. Y. 188, 195, 196, 18 N. E. 870. In this case the plaintiff had had practical experience of a year and a half in the performance of the same duties as those in which he was engaged on the night of the accident, and it is impossible to believe that he had not in that time acquired some knowledge of the nature and properties of the substances with which he was engaged; that he had not learned that the products of petroleum, under some conditions, and especially the condition of great heat, are capable of generating explosive gases, and that it is unsafe to bring fire into contact with those gases when they are being evolved.

But the plaintiff testifies that he had been in the habit, during the whole of his experience with the paraffine tanks, of doing the work assigned to him in the same way as on the night in question, and that no explosion had ever before occurred. If this is true,-if he had habitually raised the lid of the tank with his lantern in his hand, or hanging on his arm, and done so with impunity,—then the inference is unavoidable that the conditions present on the night in

question were materially different from those which usually pre. vailed, and the only reason for that difference which is suggested by the evidence is that the heat in the tank was greater than it ordinarily was when the lid was raised, and that this was caused by leaving the steam on longer than was proper, or that the tank was opened too soon after the steam was shut off. This conclusion, if it afford the correct hypothesis to account for the unusual, and indeed unprecedented, explosion, is important in two respects as bearing upon the question of the defendant's liability; for, first, it tends to show that the danger here encountered was one not reasonably to have been apprehended by the defendant; and, second, it demonstrates either that the negligence of the fellow servant, the engineer, who devolved his own duty upon the plaintiff, or of the plaintiff himself, who undertook the performance of that duty, or of both, contributed to occasion the accident, and to produce the injury complained of; and in either case there could be no recovery in this action. We think the motion for a new trial, which presented the questions here considered, should have been granted. The order appealed from should therefore be reversed.

Order appealed from reversed, and a new trial granted, with costs to abide the event. All concur.

(75 Hun, 248.)

OBERLIES V. BULLINGER. (Supreme Court, General Term, Fifth Department. January 18, 1894.)


A building contract provided that the owner might at any time during the progress of the work “make any alteration, deviation, addition, or omission in the work or materials hereby contracted for;" the value of which should be added to or deducted from the contract price, and that any dispute as to the value of such alterations, etc., should be determined by arbitrators. Held, that the provision for arbitration did not apply where the owner refused to pay for the work on the ground that the contract had

not been substantially performed. 2. SAME-ARCHITECT'S CERTIFICATE.

A building contract provided that part of the contract price should be paid as the work progressed, and the balance when the work was completed and accepted, and that payments should be made in accordance with the architect's certificate. Held, that the architect's certificate was required only as to the payments to be made as the work progressed, and

not to the final payment after completion of the work. 3. SAME_WAIVER OF DAMAGES FOR DELAY.

Where the owner permits the contractor to go on with the work after the time limited by the contract, without expressing disapproval or dis

satisfaction, he does not thereby waive damages for the delay. 4. SAME-SUBSTANTIAL DEFECTS.

A defect in the construction of a building may be a substantial defect. though it does not run through the entire structure, and can be remedied without disturbing or interfering with the main building.

Appeal from circuit court, Monroe county.

Action by Henry Oberlies against Balthasar Bullinger for a b:). ance alleged to be due on a contract. From a judgment entered on

a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
W. S. Hubbell, for appellant.
A. Benedict, for respondent.


DWIGHT, P. J. The action was to recover a balance claimed to be due on a contract by which plaintiff agreed to do all the carpenter work of a house to be built for the defendant for the sum of $3,050. The complaint sets out the contract in full, and it contains the following, among other provisions:

"Eighty per cent. of the value of the work executed will be paid from time to time as the work progresses, and the balance when the whole job has been completed and accepted. Payments made in accordance with the architect's certificates.

Second. The party of the second part shall have the right and privilege, at any time during the progress of the said building, to make any alterations, deviations, additions, or omissions in the work or materials hereby contracted for, without making void this contract; but the true value of said alterations, deviations, additions, or omissions shall be added to or deducted from the amount specified in this contract, as the case may be. * * Fourth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Oscar Knebel, architect, employed by party of the second part to superintend the construction of said building, with a view to the due execution of the works on the part of the party of the first part, and his decision shall be final and conclusive; but should any dispute arise as to the true value of the alterations, deviations, additions, or omissions in the work or the materials hereby contracted for, the value in dispute shall be determined by two competent persons,-one employed by the party of the first part, and the other by the party of the second part,-and they shall have power to name an umpire, whose decision shall be binding on all parties."

The architect made no inspection of the work, during its progress, and made no certificates of the amounts earned by the contractor from time to time; but the defendant made payments, from time to time, aggregating the sum of $1,900, and leaving unpaid, of the contract price, the sum of $1,150, for which, together with a small amount for extra work, this action was brought. After the work was completed, as was claimed by the plaintiff, the architect made such inspection as he was then able to make, and gave to the plaintiff a certificate in the following terms, addressed to the defendant.

"Sir: This will certify that the carpenter and joiner work of your house on Alexander St., under contract with Henry Oberlies, has been completed in accordance with the plans and specifications, with the exception of the roof of the addition, which is deficient in height about five inches. [Signed]

"Oscar Knebel, Architect." The plaintiff presented this certificate to the defendant, and demanded the entire balance of the contract price, together with the value of the extra work, amounting in all to the sum of $1,223.75, which the defendant declined to pay, and he declined to accept the house as built and completed in accordance with the contract. There are other particulars, of perhaps minor importance, besides the defect in height of the rear portion of the house, in which the

defendant complains that the work of the plaintiff was not done in conformity with the contract and specifications; and it is conceded that the work was not completed until something more than a month after the time (November 1, 1887) which was fixed by the contract for its completion. The case has been twice tried. On the first trial, in January, 1890, the court directed a nonsuit, and ordered the plaintiff's exceptions to be heard in the first instance at the general term. A motion for a new trial was accordingly made in this court, and was denied, and judgment was ordered for the defendant on the nonsuit. It was then considered that as matter of law, that, upon the undisputed evidence of the defect in the construction of the roof, the contract had not been substantially performed. See opinion of the court, by Macomber, J., 11 X. Y. Supp. 264. On an appeal to the court of appeals the judgment entered on the order of this court was reversed, and a new trial was granted; it being there held that the defect in question was not shown to be such as to warrant the court in holding, as matter of law, that the contract had not been substantially performed, but that whether it had been or not was properly a question of fact for the jury. See opinion per curiam, 132 N. Y. 598, 30 N. E. 999. The result of the new trial thus granted, and now under review, was a verdict in favor of the plaintiff for $1,277.96.

Two questions discussed on the present appeal were not determired by the decision of the court of appeals. One of them seems not to have been considered, and the other was held not to be presented by the record, because not raised on the trial. Both of these questions relate to what are claimed by the defendant to be conditions precedent to a cause of action on the part of the plaintiff. Both arise upon provisions of the contract which are quoted above, and both were raised on the second trial. In respect to the last mentioned of them, the court of appeals, after quoting the fourth clause of the contract, as above quoted, said:

"The defendant seeks to uphold the nonsuit on the ground that an arbitration to settle the amount due on the contract was a condition precedent to the plaintiff's right to recover, and that having failed to show that an arbi. tration had been had, or that he had offered to arbitrate, he was not entitled to recover. The answer to this position is that this question was not raised on the trial. * Had the defendant raised this objection, the plaintiff might have shown that the defendant had refused to arbitrate, or that an arbitration had been waived."

The question was undoubtedly raised on the last trial, with the same absence of proof of an arbitration, or an offer to arbitrate; but the complete answer to it, we think, is that neither the claim of the plaintiff to recover, nor that of the defendant for damages, is within the provision for arbitration contained in the contract. l'pon recurring to the fourth clause, supra, it will be seen that.the only matter to be arbitrated is "any dispute” which may "arise as to the true value of the alterations, deviations, additions, or omis. sions in the work or materials hereby contracted for.” What are “the alterations, deviations, additions, or emissions" here mentioned? The use of the definite article here is significant. It sur

gests that the alterations, etc., referred to, are elsewhere mentioned and provided for in the contract. And so we find in the second clause of the contract, above quoted, a provision giving to the party of the second part (the owner) the privilege, at any time during the progress of the building, to make any "alterations, devia. tions, additions, or omissions” in the work or materials contracted for, the true value of which shall be added to cr deducted from the contract price, as the case may be. These are undoubtedly the same "alterations, deviations, additions, or omissions” mentioned in the fourth clause, the true value of which, in case of dispute, is to be determined by arbitration. And, these being such as the owner has the privilege to make, or cause to be made, it is evident that the category does not include shortcomings and defects which result from the error or bad faith of the contractor.

The other condition precedent to a recovery contended for by the defendant was the certificate of the architect that the work was completed in full compliance with the contract and specifications. But it is doubtful whether the words, "payments to be made in accordance with the architect's certificates,” in the provision of the contract first above quoted, have any application at all to the final payment of the amounts withheld during the progress of the work. Certain it is that they cannot have the force for which the defendant contends, for that would be to make the architect the final arbiter of the rights of the parties. The most obvious reference is to those payments, to be made from time to time, which required the estimate and computation, by an expert, of the amount of work done and materials furnished, and consequently of the amount of money earned, since the last payment. The scheme of the contract, in this respect, is that 20 per cent. of the amount earned by the contractor shall be withheld throughout the progress of the work, and that the 80 per cent. to be paid from time to time shall be certified to be due to the contractor after the estimate and computation necessary to ascertain the amount. The final payment requires no such estimate or computation, but is merely the balance of the contract price after deducting the payments already made. But, further, to make the certificate of the architect that the work is completed, in all respects, in full compliance with the specifications of the contract, a condition precedent to the right to receive the final payment, would be to ignore the distinction which the law makes between substantial and minor defects of construction, or those which work a forfeiture of the contract, and those for which compensation may be rendered in damages. Clearly, the question whether the defect described in the actual certificate was of the former or of the latter class could not be finally determined by the architect, but was a question upon which either party was entitled to take the judgment of the law. We conclude, therefore, that neither an offer to arbitrate, nor an unqualified certificate of the architect was a condition precedent to the plaintiff's right of action. On the other hand, by a similar course of reasoning, we arrive at the conclusion that no final certificate of the architect could have the effect to deprive the defendant of either a complete or a partial

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