186 Misc. 491 | New York Court of Claims | 1946
TMs suit arises out of a contract "between the claimant and the State of New York for the construction of certain sections of the Interborough Parkway in the city of New York.
Claimant duly filed a notice of intention which recited many and various instances of interference and charged “ that during the performance of said contract the State of New York wrongfully hindered and delayed claimant’s work * * * with consequent large loss and damages on account of increased-cost of performance of said work.”
Iu response to a demand for a bill of particulars as to “ Each items of expense going to. make up the sum of $30,214.04 ” for
item 110 B.S., the claimant reported:
“ Cost of top soil.......................... $28,718.42
Cost of labor, etc........................ 28,509.12
Total............................... 57,227.54
Claimant received from the State for 36,018 cubic yard of top soil..................- 27,013.50
Loss................................ $30,214.04 ”
Upon the trial claimant offered proof that it had furnished and placed 39,226.75 cubic yards of topsoil, item 110 B.S., and thereupon moved to amend its claim to conform to the proof. The proposed order would strike out the words “ and sustained loss and damages in furnishing and placing 36,018 cubic yards of top soil, Item 110 B.S., amounting to the sum of $30,214.04 ” and insert in place thereof the following: “ and sustained loss and damages in furnishing and placing top soil amounting to the sum of $22,789.67.” To that amendment the Attorney-General made no objection.
Claimant further moved to amend its claim by inserting therein the following: “ and that the State also in making final estimate and payment failed to pay claimant for 3,208.75 cubic yards of top soil, Item 110 B.S., at unit price of 75 cents per cubic yard, amounting to $2,406.56.”
To this latter amendment objection was made by the Attorney-General, decision was reserved by the court and testimony was received without prejudice to the State’s position. The basis of the Attorney-General’s objection is that the amendment proposes to add a new item to the claim of which the defendant has had no notice and that it is untimely because more than two years have elapsed since the claim accrued.
Claimant in its original pleadings asked for damages for the extra cost it incurred in furnishing and placing the topsoil due to interferences by the State’s engineers with its performance of such work. It adopted the figure appearing in the final estimate, 36,018 yards for which it has been paid at the contract unit price. Upon making its proof the invoices of the claimant’s vendors disclosed that 39,226.75 cubic yards of topsoil were brought to the job. Claimant now asks not only that the extra costs it incurred in handling the topsoil be computed on the basis of the larger yardage but it also asserts its right to be paid at the unit price for the excess number of cubic yards supplied. It happens that in dollars and cents the damages proved for the two factors total a sum less than that originally pleaded for the one. We regard that as incidental and not determinative of the right to amend.
That right lies in the fact that the contract is the basis of claimant’s action and the liability of the State depends upon its obligation thereunder. Thus it was long ago held proper to permit an amendment changing the form of a cause of action from one- to recover under the contract to one for the breach of the same contract. (Dunham v. Hastings Pavement Co., 109 App. Div. 514.) We recognize that a distinction is sometimes made between an action to recover damages for breach of contract and one for work done under the contract. (Borough Const. Co. v. City of New York, 200 N. Y. 149, 156; Faber v. City
Moreover, it has been held that a claimant, suing the State of New York for breach of a contract may change his plea from one founded on negligence in the preparation of plans and specifications to one founded upon fraud and deceit therein. (Murray v. State of New York, 202 App. Div. 597.) That decision upheld the sufficiency of a notice of intention which was then a necessary prerequisite to the jurisdiction of this court. (Butterfield v. State of New York, 221 N. Y. 701.) Now a claimant may elect to file his claim, or pleading, in the first instance without filing a notice of intention. (Court of Claims Act, § 10, subd. 4.) However, as the procedural question sub judice in Murray v. State of New York (supra, p. 598) was the granting of a motion to amend the claim, which contained “ allegations in substantially the same language as the notice ”, we regard that case as an authority in support of claimant’s position herein.
The point is that claimant’s demands, whether they are for breach or for materials furnished in excess of that for which it has been paid, are founded upon the obligation assumed by the State of New York when it entered into the contractual relation. Timely notice that its conduct in fulfilling that obligation was challenged and would be reviewed in this court has been given and an opportunity for preparation of its defense has been afforded. Therefore it is our judgment that the amendment should be granted and an order to that effect may be entered.
As claimant seeks to recover on several items and as we have allowed some and have disallowed others, in whole or in part, in the accompanying decision, a brief discussion may be worthwhile.'
In general we adopt claimant’s requests to find in respect to delays and interferences with its work of laying concrete pavement except that we find that claimant has not established
We find that claimant was interfered with by the opening of the parkway to public traffic prior to the completion and acceptance of the work and thereby sustained excess costs in hauling 39,226.75 cubic yards of topsoil in the sum of $6,052.99 which with overhead and profit amounts to $6,991.20.
We find that claimant was further interfered with in the spreading and placing of 39,226.75 cubic yards of topsoil. We do not award the sum of $9,222.47 requested by claimant for the reason that in making his computation the witness gave credit to the State for 36,018 cubic yards at fifteen cents amounting to $5,402.70. The credit should be for 39,226.75 cubic yards at fifteen cents or the sum of $5,884.01. The difference is $481.31 and the award on this item is $8,741.16.
For interferences with placing topsoil item 110 B.S. between November 12th and December 15th claimant asks for $3,250. We award the sum of $2,000 which we find to be fair and reasonable compensation.
We award claimant $2,406.56 for furnishing an additional 3,208.75 cubic yards of topsoil at unit price of seventy-five cents per cubic yard.
We award claimant $468.75 for engineering charges arbitrarily assessed and deducted from final payment.
We find that a reasonable time for completion of measurements and computations and the preparation of the final estimate was sixty days after acceptance of the contract and we award claimant interest upon the amount of final payment or the sum of $492.45. There is precedent for this award in the claim of Johnson v. State of New York (No. 18428) and also in the claim of A. W. Banko, Inc., v. State of New York (No. 25353). As the contract work had been fully completed and accepted and the sum due on the final estimate had been earned, the case of Litchfield Const. Co. v. City of New York (244 N. Y. 251, 270) is not an authority to the contrary.
Claimant’s position in regard to the New York City sales tax is rather naive but" if claimant’s officers were unaware of the enactment when they prepared their bid they may be presumed to have had knowledge thereof. Anyway the State’s failure to notify bidders that such a tax would be imposed was not a fraudulent concealment of a material fact affecting the nature and cost of the work. We do not agree with counsel’s argument that because the city has had the benefit of the parkway the State should make good to the contractor the amount of the tax it paid to the city. This item is dismissed.
Decision accordingly.