127 N.Y.S. 987 | N.Y. App. Div. | 1911
The plaintiffs sued upon a written contract to recover fees agreed upon therein for services as architects in preparing plans and specifications for the erection of a pumping statioil in the borough of Brooklyn. They alleged that the contract in question was modified in some of its terms after its execution, and alleged performance thereof on their part as so modified. The main allegations of their complaint were denied. At the trial one of the plaintiffs took the stand and the contract in question, as it stood in its original form,
Under the written contract by clause 3 the plaintiffs were to prepare first “ preliminary studies and specifications, together with an estimate of the cost of the said building or structure.” This clause further, provided as follows: “If the said preliminary drawings, specifications and estimate are not satisfactory to and approved by the commissioner [of water supply], then the architects shall and will revise and correct the same so as to conform to the suggestions, criticisms and requirements of the commissioner, and so that the estimated cost, including architects’ fees and the cost of surveys and inspection, shall be well within the sum of forty-eight thousand dollars ($48,000) the funds available for the said building or structure.” The plaintiffs claimed that they did furnish preliminary plans and drawings for a structure the estimated cost of which was well within the sum of $48,000. This fact was assumed as true on the trial. The contract provided that, on the completion of these preliminary plans and specifications, the architects were to become entitled to a payment from the defendant of an amount equal to one per cent of the estimated cost of the work. The plaintiffs claimed that the commissioner of water supply did not approve these preliminary plans and specifications, but directed them to prepare further plans and specifications embracing many features not to be found in the preliminary plans and drawings and which necessarily increased the estimated cost of the building considerably beyond the sum of $48,000. They contended that they so notified the commissioner when he directed the inclusion of these new features in the definite plans and specifications for the buildings, and they urge that his direction to them, with such notice, created a modification of that part of the contract which required their definite plans and specifications to be well within the sum of $48,000, which amount was available for the total cost of the contemplated structure. The plans, so prepared at the direction of the commissioner of water supply, were approved by him and bids solicited thereon, according to the provisions of law. The lowest bid received was in the sum
The judgment should be affirmed, with costs.
Jenks, P. J., Burr, Thomas and Pi oh, JJ., concurred.
Judgment affirmed, with costs.