FIRST DEPARTMENT, MARCH TERM, 1875. Geo. W. Wingate, for the appellants. The water purveyor having refused to give a certificate upon unreasonable grounds, the plaintiffs were thereby absolved from producing it. (Thomas v. Fleury, 26 N. Y., 33, 34. See, also, McMahon v. N. Y. & Erie R. R. Co., 20 id., 463, 467; U. S. v. Robeson, 9 Peters, 319, 327; Devlin v. Second Ave. R. R., 44 Barb., 81, 84; Smith v. Smith, 45 Vermont. 433.) When the performance of a condition is rendered impossible by the act of God, or of the law, or of the other party, the contractor is excused. (People v. Manning, 8 Cow., 297; Jones v. Judd, 4 Comst., 411; Higgins v. Solomen, 2 Hall, 482; Farnham v. Ross, id., 167; People v. Bartlett, 3 Hill, 570; Stewart v. Keteltas, 36 N. Y., 388; Allerman v. Mayor, etc., Albany, 43 Barb., 43; McComb v. N. Y. & Erie R. R., 20 N. Y., 495; Blight v. Ashley, Pet. C. Ct., 25; Niblo v. Binesse, 3 Abb. App. Dec., 375; Howell v. Gould, 2 id., 418.) A party who prevents or dispenses with the performance of a condition in a contract, cannot take advantage of the non-performance. (Devlin v Second Av. R. R., 44 Barb., 81; Blacksmith v. Fellows, 3 Seld., 416; Butler v. Tucker, 24 Wend., 449; Smith v. Gugerty, 4 Barb., 614; Resenger v. Cheney, 2 Gilman [Ill.], 84; Ruble v. Massey, 2 Ind., 637; Pond v. Wyman, 15 Md., 175; Grove v. Donaldson, 15 Pa., 128; Ketcham v. Zeilsdorff, 26 Wis., 514.) The contract itself prevents the existence of this injunction. from being used by the defendants as a defense to the plaintiff's claim. If they are prevented from confirming the assessment by the act of a third party, it forms no excuse as between them and the contractor for failing to perform their part of the contract. If they desired to have such delay constitute an excuse, they ought to have put it in the contract. (Giles v. Crosby, 5 Bosw., 389; Baker v. Johnson, 2 Robt., 570, 580; affirmed, 42 N. Y., 126; Christ v. Armour, 34 Barb., 378, 385, 387; Reid v. Edwards, 7 Port. [Ala.], 420; Cobb v. Harmon, 23 N. Y., 148, and see citations at p. 152.) The court erred in refusing to allow the jury to consider the question as to whether or not the water purveyor's refusal to give the certificate was unreasonable or in bad faith. Whether any act is or is not "reasonable," is a question for the jury and not for the court. (Thomas v. Brackney, 17 Barb., 654, 659; Green v. Hennis, 1 Hilt., 254; Conger v. Hudson R. R. R., 6 Duer, 375; Lawrence v. Ocean Ins. Co., 11 FIRST DEPARTMENT, MARCH TERM, 1875. Johns., 241; Gilhooley v. N. Y. and Savannah S. N. Co., 1 Daly, 197; Tone v. Doelger, 6 Rob., 256; Harris v. Northern Ind. R. R., 20 N. Y., 232, 239.) E. Delafield Smith and D. J. Dean, for the respondent. The plaintiff cannot be excused from compliance with the terms of the contract, unless such compliance has been rendered impossible by act of the defendants, or such certificates are unreasonably or in bad faith refused. (Smith v. Brady, 17 N. Y., 173; Butler v. Tucker, 24 Wend., 447; Thomas v. Fleury, 26 N. Y., 26; United States v. Robeson, 9 Pet., 349.) An officer acting or refraining from action in obedience to the order of a court of competent jurisdiction, cannot be said to be acting or refusing to act, unreasonably and in bad faith. By the contract, no money could become payable until an assessment for the expense named should be confirmed. The plaintiff's assignor, the contractor, is chargeable in law with knowledge of the limitation imposed by law upon the powers of the corporate officials. (Fairtitle v. Gilbert, 2 Durnf. & East, 169; Hodges v. Buffalo, 2 Denio, 110-112; Brady v. The Mayor, 2 Bos., 173; S. C., 20 N. Y., 312; Appleby v. The Mayor, 15 How., 428; Supervisors of Rensselaer v. Bates, 17 N. Y., 242; Smith v. The Mayor, 14 Sandf., 227; S. C., 6 Seld., 508; McDonald v. The Mayor, 4 Sup. Ct. R., 177.) DAVIS, P. J.: It appears on the retrial of this case, that no certificate of the water purveyor was given, and that, when that officer was called upon for one, he declined to give it, saying "that, owing to some injunction that had been got on the work by the property owners, he was debarred from the right of giving it." This court held, on the former appeal, that the certificate of that officer was a condition precedent to the obligation of the defendants to pay. It might perhaps be held, that what took place in the water purveyor's office in respect to the completion of the work, as testified to by the clerk of the water purveyor, was equivalent to the certificate; but the plaintiff showed by another witness (Daniel Owen), that that testimony was incorrect. Owen was the general superintendent of the contracting company, and on their behalf called for the certificate FIRST DEPARTMENT, MARCH TERM, 1875. of the water purveyor; and he says that the company had got the certificate the year before on every work they had done, and adds: "I called for it naturally to get a settlement; that appeared to be the difficulty. We had done some other work, and he had given certificates for it." This shows that the entry in the book and the memorandum sent to the contract clerk, etc., were not understood by either the company or the purveyor, to be the certificate required by the contract. But it is insisted that the excuse given by the purveyor, was an unreasonable one. The injunction order restrained the defendants, their officers and servants, from further proceeding under an ordinance, passed, etc., for paving One Hundred and Twenty-eighth street, "to lay, and from confirming any assessment therefor, for paving said so called street, etc., and from doing any act or thing toward making or confirming such assessment, or making the same a lien on any property," etc. The water purveyor was an officer and servant of the defendants, and, it seems, had notice of this injunction, and supposed himself bound to regard it. His official action was a step toward making or confirming such assessment, because the assessment could not be laid till the work was completed, and his certificate was part of the evidence to show such completion to the assessors. His refusal was not illegal or unreasonable, we think, within the meaning of the rule which excuses the performance of such a condition precedent. The stipulation of the contract as to the time of payment, to wit: that the defendants should pay "on the confirmation of the assessment to be laid for said work" (which, in connection with the subsequent provisions of the contract, must be construed to apply to the balance remaining unpaid after the payment of the monthly installments of seventy per cent), has not in our judgment been obviated. It is undisputed that the assessment had not been laid when this suit was commenced, and of course it had not been confirmed. This suit appears to have been commenced in March, 1873. The suit and injunction to restrain the officers from making and confirming the assessment was then pending. It does not appear to have been collusive, nor to have been delayed by defendants for the purpose of preventing plaintiffs from receiving their money. We see no reason to change the views expressed on this point in the former opinion. The event had not occurred upon 3 646 22ap392. FIRST DEPARTMENT, MARCH TERM, 1875. which the money became due and payable, and the delay in its occurrence is not shown to have been caused by the collusion, negligence or fraud of the defendants. The action was prematurely brought, and the judgment must be affirmed. DANIELS and BRADY, JJ., concurred. Judgment affirmed. JAMES L. TREAT, RESPONDENT, v. ERASTUS H. HATHORN, APPELLANT. Replevin when demand must be alleged and proved. Where property comes rightfully into the possession of the defendant, to maintain replevin for the wrongful detention thereof, a demand and refusal must be alleged and proved. Where, in an action of replevin to recover four horses which the defendant claimed to detain by virtue of a lien acquired by him for their keep, the complaint alleged that the defendant "wrongfully detains from the plaintiff the following articles of personal property belonging to said plaintiff,” and, after describing the articles and their value, proceeded, "in which the said plaintiff claims property and demands their immediate possession:" held, that, as no question was made upon the trial as to the sufficiency of the complaint, and as a demand and refusal before suit brought was then proved, the defendant could not insist, upon appeal, that such demand and refusal should have been alleged in the complaint. Scofield v. Whitelegge (49 N. Y., 259) distinguished; Levin v. Russell (42 id., 251) followed. APPEAL from a judgment, in favor of the plaintiff, entered on the report of a referee. William H. Gale, for the appellant. Daniel B. Childs, for the respondent. DAVIS, P. J.: This action was brought to recover possession, and damages for the detention, of four horses, which are admitted by the pleadings FIRST DEPARTMENT, MARCH TERM, 1875. to be the property of the plaintiff. The defendant is a livery stable keeper, and received the horses in question in the month of April, 1873, to board. He was paid for their board (as found by the referee), up to the 3d day of July, 1873, on which day, it is claimed by plaintiff, that an arrangement was made between himself and one Pelton, under which the horses were to remain in defendant's stable at the expense of Pelton, who was to pay for their keep until a specified time, unless sooner sold, and that defendant was cognizant of the agreement, and assented to it, with the understanding that the horses were, from that time, to be kept by him on Pelton's account. The defendant claimed to detain the horses by virtue of a lien, under the provisions of the act, entitled, "An act for the protection of livery stable keepers, and other persons keeping horses at livery or pasture," passed May 3, 1872. The defendant's counsel insists that the complaint fails to state a cause of action, for the want of an averment of " a demand and refusal before suit brought." The complaint alleges that the defendant "wrongfully detains from the said plaintiff the following articles of personal property, belonging to said plaintiff,” and then proceeds to describe the horses and their value, and then to allege, "in which the said plaintiff claims property and demands their immediate possession." Undoubtedly, where property came rightfully into the possession of the defendants, to maintain replevin for a wrongful detention, a demand and refusal must be shown. It seems to have been held in Scofield v. Whitelegge,* that they must also be averred But this case does not fall within the decision in Scofield v. Whitelegge, because here was a distinct averment of ownership, and because no question was made upon the trial as to the sufficiency of the complaint, and there was distinct proof given by plaintiff of a demand before suit brought, and a refusal by defendant to let the horses go unless the bills were paid. In other words, the defendant put himself upon his alleged lien. That brings this case within Levin v. Russell, which was not intended to be overruled by Scofield v. Whitelegge. There is, therefore, no force in the objection raised here, because it is manifest, if it had been made before the referee, * 49 N. Y., 259. + 42 N. Y., 251. |