the balance due the architect, who brought suit for it. The case was turned over first by the court to a referee, who found by the witnesses that the architect was “diligent in his attendance upon the building.” Two architects testified that if
the building had been properly superintended, the mistake in levels of sills would have been discovered “ when the second story beams were on,” or “when they began to lay the brownstone in front.” One architect testified that “ it is impossible to say when the error should have been discovered. It might have passed the observation of the architect till the building was completed. It is an error likely to pass any one’s observation. It would most likely pass his notice until the cornices were put up.”
The referee reported that the plaintiff “ had bestowed as much personal attention upon the building as was necessary, and that the variations mentioned were not caused by carelessness, negligence or inattention on his part.” The General Term of the Superior Court reversed the judgment of the referee, and found for the defendant. On appeal, the Court of Appeals reversed the judgment of the Superior Court, and ordered judgment for the plaintiff. The Court said, “ It, ” (the defect), “ arose from the masons not having accurately conformed to “ the specification and plan. Was the plaintiff responsible for “ this fault of the masons ? The plaintiff agreed to make plans, “ sections, elevations, specifications, and to superintend the “ progress of the building to be erected. It was not his duty “ to do the work. The agreement between the defendant and “ his masons provides that the masons shall well and sufficiently “ erect and finish the building in question agreeably to draw ings and specifications made by Frederick Petersen. It was “ not the duty of the plaintiff to lay out the work, as it is “ technically termed. This, it was expressly provided, should “ be done by the mason, who agrees to ‘ lay out his work him“ self.’ The plaintiff was bound to furnish the plans, specifica“ tions, sections, and elevations, and the mason was bound to “ lay out the work. In other, but perhaps not plainer words, “ the plaintiff was bound to put down, and to show on paper, “ how every part was to be built, and the mason was to stake “ it out, measure his lumber, and make actual measurements
“ on the ground and in the erection for such building. I do “ not think it was the duty of the plaintiff to measure the joists
not architect’s duty to ascertain accuracy op work. “ or timber of which the different stories were to be constructed, “ and to determine by actual measurement that the ceiling of “ the first story had an elevation of thirteen feet, and the se“ cond had an elevation of eleven feet, or to measure the thick“ ness and depths of the brick or stone walls. He furnished “ instructions and information in writing on these points, and “ it was the duty of the mason or carpenter to furnish the ma“ terials, to see that they were of the proper dimensions, and “ to put them in their proper places.
“ The defendant, however, contends that the obligation of “ the plaintiff to superintend the progress of the building bound “ him to discover and correct the error committed by the me“ clianics. The plaintiff did assume the superintendence of “ the erection of the building, as I think he was bound to do, “ upon a fair construction of his language, and must meet the “ obligations of his contract. The plaintiff came from day to “ day to superintend the progress of the work, and while thus “ superintending, was he bound to have ascertained that the “ window-sills in the front parlor were 2f inches higher from “ the floor than was authorized by the plan ? The referee must “ have held that the plaintiff was not bound to have discovered “ this defect. He found that the plaintiff had bestowed as “ much personal attention on the building as was necessary, “ and that the variations mentioned were not caused by care“ lessness, negligence or inattention on his part.
“ I do not find it necessary to differ with him.
“ The circumstance that the defendant paid the masons the “balance due them for the work, when the plaintiff refused “ them a certificate on account of the defects in question, and “ which payment he was not bound to make, until the masons “presented such certificate, is not important. If the masons “neglected their duty, the defendant could certainly have made “ them respond in damages, and could have withheld the last “ payment to apply on such damages. The fact, however, that “ they neglected their duty furnishes no evidence that the “ plaintiff has discharged his. Each may have been in fault,
“ and each liable in damages, and a failure to prosecute one, “ or to secure an easy remedy against him, does not discharge “ the default of the other, nor do I understand that the referee “ based his decision upon such a theory. The referee places
Fig. 29. Court of the Town-hall of Wurzburg.
Fig. 30. The Alte Residenz at Bamberg.
the building had been properly superintended, the mistake in levels of sills would have been discovered “ when the second story beams were on,” or “when they began to lay the brownstone in front.” One architect testified that “ it is impossible to say when the error should have been discovered. It might have passed the observation of the architect till the building was completed. It is an error likely to pass any one’s observation. It would most likely pass his notice until the cornices were put up.”
The referee reported that the plaintiff “ had bestowed as much personal attention upon the building as was necessary, and that the variations mentioned were not caused by carelessness, negligence or inattention on his part.” The General Term of the Superior Court reversed the judgment of the referee, and found for the defendant. On appeal, the Court of Appeals reversed the judgment of the Superior Court, and ordered judgment for the plaintiff. The Court said, “ It, ” (the defect), “ arose from the masons not having accurately conformed to “ the specification and plan. Was the plaintiff responsible for “ this fault of the masons ? The plaintiff agreed to make plans, “ sections, elevations, specifications, and to superintend the “ progress of the building to be erected. It was not his duty “ to do the work. The agreement between the defendant and “ his masons provides that the masons shall well and sufficiently “ erect and finish the building in question agreeably to draw ings and specifications made by Frederick Petersen. It was “ not the duty of the plaintiff to lay out the work, as it is “ technically termed. This, it was expressly provided, should “ be done by the mason, who agrees to ‘ lay out his work him“ self.’ The plaintiff was bound to furnish the plans, specifica“ tions, sections, and elevations, and the mason was bound to “ lay out the work. In other, but perhaps not plainer words, “ the plaintiff was bound to put down, and to show on paper, “ how every part was to be built, and the mason was to stake “ it out, measure his lumber, and make actual measurements
“ on the ground and in the erection for such building. I do “ not think it was the duty of the plaintiff to measure the joists
not architect’s duty to ascertain accuracy op work. “ or timber of which the different stories were to be constructed, “ and to determine by actual measurement that the ceiling of “ the first story had an elevation of thirteen feet, and the se“ cond had an elevation of eleven feet, or to measure the thick“ ness and depths of the brick or stone walls. He furnished “ instructions and information in writing on these points, and “ it was the duty of the mason or carpenter to furnish the ma“ terials, to see that they were of the proper dimensions, and “ to put them in their proper places.
“ The defendant, however, contends that the obligation of “ the plaintiff to superintend the progress of the building bound “ him to discover and correct the error committed by the me“ clianics. The plaintiff did assume the superintendence of “ the erection of the building, as I think he was bound to do, “ upon a fair construction of his language, and must meet the “ obligations of his contract. The plaintiff came from day to “ day to superintend the progress of the work, and while thus “ superintending, was he bound to have ascertained that the “ window-sills in the front parlor were 2f inches higher from “ the floor than was authorized by the plan ? The referee must “ have held that the plaintiff was not bound to have discovered “ this defect. He found that the plaintiff had bestowed as “ much personal attention on the building as was necessary, “ and that the variations mentioned were not caused by care“ lessness, negligence or inattention on his part.
“ I do not find it necessary to differ with him.
“ The circumstance that the defendant paid the masons the “balance due them for the work, when the plaintiff refused “ them a certificate on account of the defects in question, and “ which payment he was not bound to make, until the masons “presented such certificate, is not important. If the masons “neglected their duty, the defendant could certainly have made “ them respond in damages, and could have withheld the last “ payment to apply on such damages. The fact, however, that “ they neglected their duty furnishes no evidence that the “ plaintiff has discharged his. Each may have been in fault,
“ and each liable in damages, and a failure to prosecute one, “ or to secure an easy remedy against him, does not discharge “ the default of the other, nor do I understand that the referee “ based his decision upon such a theory. The referee places
Fig. 29. Court of the Town-hall of Wurzburg.
Fig. 30. The Alte Residenz at Bamberg.