FRANCIS J. KELLY and Others, Composing the Firm of F. J. KELLY & SONS, Respondents,
ST. MICHAEL'S ROMAN CATHOLIC CHURCH IN THE CITY OF BROOKLYN and CHARLES E. MCDONNELL, Bishop of the Roman Catholic Church for the Diocese of Brooklyn, Appellants.
APPEAL by the defendant, St. Michael's Roman Catholic Church in the City of Brooklyn, from so much of a judgment of the Supreme Court, in part in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 2d day of September, 1910, upon the report of a referee, as awards judgment against said defendant; and by the defendant, Charles E. McDonnell, bishop, etc., from so much of said judgment as dismisses the complaint as to him, without costs, with notice of an intention to bring up for review an interlocutory order denying the defendants' motion to require plaintiffs to make their complaint more definite and certain.
Francis A. McCloskey [Joseph F. Keany, with him on the brief], for the appellants.
Robert H. Roy, for the respondents.
Plaintiffs bring this action against St. Michael's Roman Catholic Church in the City of Brooklyn, sued as St. Michael's Roman Catholic Church, and Charles E. McDonnell, bishop of the Roman Catholic church for the diocese of Brooklyn.
For a first cause of action they allege that on the 29th day of May, 1901, they entered into an agreement with the defendant St. Michael's Church to perform work, labor and services, and furnish certain materials in connection with the construction of the church and rectory buildings. They allege full performance of such contract, and a balance remaining unpaid on account thereof amounting to the sum of $2,286.56.
For a second cause of action they allege that at the special instance and request of defendant St. Michael's Church, its agents and servants, they rendered and performed certain work, labor and services and furnished certain materials in and about the said church and rectory buildings, and also on the schoolhouse of said St. Michael's Church, in addition to that required under the said contract. An itemized statement of such extra work and materials is attached to the complaint. The value of such work and materials is stated to be the sum of $10,765.55.
The issues in this action were referred to a referee, who found as to the first cause of action that the work called for by the contract had been fully performed, and that the balance claimed to be due thereunder remained unpaid. As to the second cause of action, the referee found that during the progress of the work under the contract plaintiffs, at the instance and request of the architect, Raymond F. Almirall, and the defendant St. Michael's Roman Catholic Church, performed certain work and furnished certain materials in addition to that which was required by the contract, which were reasonably worth the sum of $8,537.22. The referee found that these were furnished upon the oral order and direction of said architect, and the oral direction and request of defendant St. Michael's Roman Catholic Church, and that no orders in writing were given for the same. The referee also found that no cause of action had been established against the defendant Charles E. McDonnell. Judgment was entered in accordance with the report of the referee, and from such judgment each of the defendants appeal.
The evidence abundantly establishes the performance of the original contract, as well as the performance of work and the furnishing of materials not called for in such contract, of the value found by the said referee. The validity of such judgment
is attacked, however, upon several grounds not involving the performance of the work or the value thereof. Some of these it is necessary to consider.
The defendants contend that the complaint is defective in that it neither contains the substance of the alleged contract between the parties, with its conditions and qualifications, nor is there incorporated therein or annexed thereto the contract itself. It may be that the complaint was open to attack upon the ground that it did not state facts sufficient to constitute a cause of action, provided such attack had been seasonably made. No demurrer was interposed, and no motion was made upon the trial of the action calling in question its sufficiency until after the contract between plaintiffs and the defendant church had been offered and received in evidence without objection. It was then within the discretion of the referee to permit an amendment to the complaint in accordance with the evidence already received, which would have made it immune from attack. If necessary the complaint might now be deemed amended in that regard, and the refusal of the referee to dismiss the complaint for failure to state facts sufficient to constitute a cause of action at the time that the motion was made does not present reversible error. Defendants further contend that the contract which was received in evidence is neither upon its face nor in fact the contract of the defendant church. In form it is one between Rev. Henry A. Gallagher, rector, party of the first part, and F. J. Kelly & Sons (the plaintiffs here), party of the second part. Nowhere in express terms does it purport to be the contract of the defendant church. But the contract is not under seal, and if it is the fact that the contract was made, as the complaint alleges, by the said rector, as the duly authorized agent of defendant St. Michael's Church, such defendant would be liable thereunder. The ...