The opinion
Patterson, P. J. (dissenting in part):
I concur in the reduction of the judgment recovered in this action by the sum of $576, which the referee has allowed for damage suf *710 fered by the plaintiff on account of extra superintendence of work, which it is asserted was required in consequence of delay in the work caused by acts of the defendants. I am of the opinion that the evidence did .not justify the referee in allowing that amount as an item of recovery by the plaintiff.
I am compelled, however, to dissent from the further reduction ' of the judgment by the sum of $2,993.04, which amount was allowed by the referee for extra work as claimed by the plaintiff. While it is true that by the terms of the contract between the parties written orders were required to authorize the performance of extra work, yet the evidence shows satisfactorily to my mind that such requirement was waived. That the work was performed and that the defendants received and accepted it is indisputable. During its progress the defendants- agreed to submit the construction of the contract to arbitration. Pending that arbitratioh it was disclosed that Mr. Ferguson, one of the arbitrators, was personally interested in the determination .of ■ the question, for this work was evidently stich as would either come within a contract to be performed by him or within the plaintiff’s contract, and the latter, with good reason, objected to going on with the proceeding before one who was . virtually an adverse party to him. It was not incumbent upon the plaintiff, after refusing to proceed before a board of arbitrators. of which Ferguson was a member, to suggest a new arbitrator. While it appears that efforts were made to constitute anothér board of arbitration, which efforts failed, .there was no absolute legal obligation on the plaintiff’s part to submit his claim to another, arbitrator or other arbitrators. The referee has found, and upon abundant evidence, that the whole amount of $2,993.04 was actually-for extra work, and I am of the opinion that the plaintiff is justly entitled to recover that amount. . .
The judgment should be modified by deducting therefrom the amount of $576, and as thus modified affirmed, without costs in this court.
Houghton, J., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.