driver farther than to signal to him by way of the gangwayman when to hoist or lower, go ahead or come back. It consequently does not appear to us that the winchman could be regarded as the servant of Lithman. It is quite apparent that it was the intention of the defendant to retain charge of the steam power and winch and operate it through its own servants and employes. And the fact that the winchman received orders from the plaintiff when to hoist and wi.en to lower, under the circumstances of this case, does not operate to change his relations to the defendant as its servant. (Sullivan v. Tioga Railroad Company, 112 N. Y. 643, 647; Sanford v. Standard Oil Co., 118 id. 571; Kilroy v. D. & H. C. Co., 121 id. 22; Butler v. Townsend, 126 id. 105.) 66 The judgment should be affirmed, with costs." Joseph A. Shoudy for appellant. Charles J. Patterson for respondent. HAIGHT, J., reads for affirmance. All concur, except FOLLETT, Ch. J., PARKER and LANDON, JJ., dissenting. Judgment affirmed. CLARENCE B. CONGER, Appellant, . WOLSEY T. WEYANT et al., Respondents. (Argued March 7, 1892; decided March 22, 1892.) APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 9, 1889, which affirmed a judgment in favor of defendants, entered upon a verdict directed by the court, and also affirmed an order denying a motion for a new trial. Irving Brown for appellant. George W. Weyant for respondents. Agree to affirm on opinion in Conger v. Treadway (ante, page 263). All concur, except BROWN, J., not sitting. Judgment affirmed. DAVID MAYER, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent. (Argued March 7, 1892; decided March 22, 1892.) APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 14, 1890, which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial. B. F. Einstein for appellant. Hamilton Harris for respondent. Agree to affirm; no opinion. All concur. Judgment affirmed. FRANCIS PARIS OSBORN et al., Repondents, v. SAMUEL EDGAR et al., Impleaded, etc., Appellants. (Argued March 8, 1892; decided March 22, 1892.) APPEAL from judgment of the General Term of the Superior Court of the city of New York in favor of plaintiffs, entered upon an order made May 28, 1890, upon an agreed case submitted under section 1279 of the Code of Civil Procedure. Charles E. Rushmore for appellants. John N. Lewis for respondents. Agree to affirm; no opinion. All concur. Judgment affirmed. EDWIN L. THOMAS, Respondent, v. JAMES P. STEWART et al., An architect, who is also employed by the owner as his agent and representative in the erection of a building, has authority to consent to the substitution of material inferior to that called for by the contract. Where, under a building contract, by which the contract price is to be paid by installments, a demand is made by the contractor for the installment due, and payment is refused, the contractor may lawfully refuse to go on with the contract. Where, by a building contract, payments are only to be made upon certificates of an architect, the refusal of the architect to give to the contractors a certificate, as required, if based upon an unreasonable require ment, will furnish no protection to the owner. (Argued March 8, 1892; decided March 22, 1892.) APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 18, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Specal Term. This was an action for the foreclosure of a mechanic's lien filed under the general act against certain property in the city of Yonkers belonging to the defendant Sahagian. Other lienors, who were joined as defendants, appeared and asserted their claims by answers duly served upon the owner. By a contract dated September 28, 1888, the firm of Stewart & Edmonds agreed to furnish the materials and do the work required by the carpenter's plans and specifications to erect a four-story brick building for Mr. Sahagian, who agreed to pay therefor the sum of $6,176, in four payments, each to be made on the certificate of the architect, the first of $1,500, when the building was enclosed and the roof on; the second of like amount when the floors were laid, “partitions set and ready for mason; the third of $1,600, when the windows were in "and standing trim on," and the fourth of $1,576, when the contract was completed and the building accepted. The first payment was made without objection and the refusal of the owner to make the second resulted in a refusal of fur * ther performance by the contractors. Each party to the contract claimed that the other made the first default and the trial court found against the owner on that issue. The contractors abandoned the contract March 5, 1889, and the next day made a general assignment for the benefit of their creditors to the defendant Stewart. March 23, 1889, the owner caused notices to be served upon the contractors and their assignee requiring them to complete the contract according to the plans and specifications, and on their omitting to do so, although there was no provision in the contract on the subject, he completed it himself at an expense of $3,989. He conceded a recovery to the extent of the difference between that sum and the amount unpaid on the contract, which is enough to protect the plaintiff, but not enough to fully pay all of the other lienors. The trial judge found that by the fifteenth of February, 1889, the contractors had performed all the work and furnished all the materials required to entitle them to the second payment and that they demanded a certificate from the architect, accordingly, but that he wrongfully and unreasonably refused to give them one. They also demanded the second payment from the owner, after informing him of the facts, but he refused to pay any part thereof without the certificate of the architect, and soon after they refused to complete the building. Upon the request of the defendant, it was further found that at the time of the abandonment of the contract, the contractors "had not made and set in each partition back of each water-closet a four by ten inch ventilator with round tin ventilator in each closet and extended two feet above the roof, as required by the specifications;" that they "had not placed in the cellar, beneath the girders, the two locust posts," as so required, and that window frames made of cottonwood "were put in without the knowledge or consent" of the owner. The court refused to find upon the like request that several other things required by the specifications had not been done. The appellant did not ask for a reversal of the judgment, but for a modification thereof by deducting all that was allowed against him, except the difference between the amount unpaid and the cost of completion. The following is the opinion in full: "If the second installment was due when the demand of payment was made by the contractors, they could lawfully decline. to go on with the contract, because the owner had refused performance on his part. (Graf v. Cunningham, 109 N. Y. 369; Schwartz v. Sanders, 46 Ill. 18.) If the second installment was not then due, the contractors were in default and the lienors, who claim under them, are entitled to a recovery only to the extent conceded by the owner, or to the difference between the amount unpaid at the date of such default and the sum required to complete the contract. (Van Clief v. Van Vechten, 130 N. Y. 571; 42 N. Y. S. R. 736; Malbon v. Birney, 11 Wis. 108.) "By the terms of the agreement, the second payment was to become due when the floors were laid, "partitions set and ready for mason." The owner claims that the contractors failed in performance, to the extent necessary to entitle them to the second payment, by omitting several things required by the plans and specifications. The lienors claim that the features omitted were waived by the architect, prevented by the owner, or not required to be done as a condition precedent to the second payment, and evidence was given in support of the claim, but the court made no specific finding upon the subject. The use of cottonwood in certain window frames, required to be made of pine, was not denied, but one of the contractors testified that on hearing that the architect objected, he went to see him and said that cottonwood could be used as well as pine; that they were merely skeletons and were covered over with pine casings on the outside and inside. After hearing this explanation, the architect said: "You may use those frames, but bring no more cottonwood on the job." The witness further testified that no cottonwood was used after that, except that some balusters were turned for use on the rear piazza, but they were no part of the work required to be done prior to the second payment. According to the evidence of another witness, no cottonwood whatever was brought on the premises after the architect objected. The architect testified that he allowed certain window frames made of cottonwood to be put in, provided the contractors would use no more cottonwood in the building, but he claimed that after that, more |