Opinion
January Term, 1900.
M.E. Duffy, for the appellant.
Samuel Greenbaum, for the respondent.
The complaint was dismissed below upon the ground that it alleged no cause of action. The action was brought to foreclose a mechanic's lien, and the complaint alleges that by a certain agreement made between the plaintiff's assignor and certain of the individual defendants the plaintiff's assignor agreed to perform certain work, labor and services, and to furnish certain materials in the erection of a building for the sum of $6,870, which the individual defendants promised to pay; that the plaintiff's assignor entered upon the performance of his work and did certain work, labor and services, and furnished certain materials in the erection of the building on the premises described; that no part of the said sum of $6,870 had been paid, except the sum of $1,150; and that there is now due to the plaintiff the sum of $4,720, payment of which has been demanded and refused; and that the certificate of the architect has been demanded and unjustly withheld.
There is no allegation in the complaint that the plaintiff's assignor performed his contract so as to become entitled to the money to be paid; nor is any fact alleged which would excuse such non-performance. The refusal of the architect to give a certificate was certainly no excuse for a failure of the plaintiff to allege and prove the performance of the contract on the part of her assignor. It is too well settled to be questioned that a contractor, to recover under such a contract, must allege and prove performance of the contract, and that before he can recover under a quantum meruit he must allege and prove some legal excuse for not completing the work he agreed to do. ( Lawson v. Hogan, 93 N.Y. 39; McEntyre v. Tucker, 36 App. Div. 53; Fox v. Davidson, Id. 159.) The complaint, therefore, failed to state facts sufficient to entitle the plaintiff to recover, and it was properly dismissed.
The judgment appealed from should be affirmed, with costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and O'BRIEN, JJ., concurred.
Judgment affirmed, with costs.