239 A.D. 571 | N.Y. App. Div. | 1933
Lead Opinion
On the 2d day of June, 1926, the claimant entered into a contract with the State of New York for the construction of the two main piers of the Mid-Hudson bridge at Poughkeepsie. This claim arises out of an alleged breach of this contract by the defendant. The total contract price was $1,889,925. The contract called for the sinking of two caissons, one on either side of the Hudson river, known as the east and west caissons. They were to be sunk until they reached a suitable foundation in the bed of the river and upon these caissons, after they were in place, were to be erected the piers for this highway bridge. While the work was in progress on each of these caissons the east caisson tipped toward the east to an angle of about forty-five degrees and was thereafter righted and sunk. The principal item claimed by the claimant against the defendant is for the righting of this caisson.
These caissons were designed by Daniel E. Moran, one of the
“ Mid-Hudson Bridge — Conference at Poughkeepsie
“ July 15th, 1927.
“ Conclusion; — East Caisson.
“ (1) Continue removing bottoms.
“ (2) When the bottoms removed on west side correspond to the open pockets on the east side, begin dredging in pockets and continue dredging until it is safe to remove more or all pockets.
“ Conclusion; — West Caisson.
“ (1) Level up with concrete.
“ (2) Lighten caisson by pumping.
“ (3) Place stone along west side, 1,000 tons (about).
“ (4) Catch on anchor of East Caisson and pull toward east, putting strain on all east anchors.
“ (5) Dredge on east side as necessary.”
At that time the claimant was engaged in removing bottoms from certain pockets of the east caisson. It had removed those from pockets 3, 5 and 7 on the east side, 20, 22 and 24, which were center pockets, and 16, which was a pocket on the west side. It was also endeavoring to remove the bottoms from two other pockets on the west side, viz., 14 and 12. It will be noted that the contractor was to do two things with relation to the east caisson, one, to continue removing bottoms, two, when the bottoms removed on the west side corresponded to the open pockets on the east side it was to begin dredging in the pockets and continue until it was safe to remove more or all pockets. There is testimony on the part of the defendant that Mr. Moran at this conference advised the contractor that there was to be no dredging beneath the cutting edge. This is contradicted by the claimant’s witnesses.
On July 15, 1927, no dredging had been done at the site of the east caisson save a small trench along the northeasterly edge thereof when the cutting edge first landed on the river bottom. After the conference of July 15, 1927, the contractor proceeded to remove bottoms until on the 26th day of July, 1927, he had removed bottoms from three pockets on the east side, five in the center and two on the west side. At that time the bottom of the east caisson had penetrated the river bed approximately eleven feet with a list of four-tenths of a foot to the west. Also, after the conference of July fifteenth the contractor began dredging in the pockets where the bottoms had been removed, and from that date until July 27,
It is contended by the claimant that the memorandum of July 15, 1927, constituted an order from the State to the contractor, that such order was carried out and that this was one of the reasons why the caisson listed. It may be conceded that such was the effect of the memorandum because under the contract the State reserved to itself the right to supervise the method of doing the work. The difficulty with the claimant’s contention with regard
In addition to contending that the defendant had issued an order which the claimant was bound to obey and that in so doing the damage had been caused, the claimant contended that the caisson was not properly designed in that it lacked stability and that this was the real reason for the fisting of the caisson. The State defends on the ground that the design was proper and claims that the quality of stability was not lacking. In support of its contention, the claimant offered testimony on the part of certain experts to the effect that the center of buoyancy, which is the center of volume of the underwater body, at one stage was lower than the center of gravity and that this caused the caisson to tip. These experts claimed that the caisson was not properly designed to enable it to be lowered to the bottom of the river. Of course, the complete answer to this argument lies in the fact that both caissons were successfully lowered to the river bed. It is true that at one point during the operations, about three feet of sand ballast was added in the bottom of each pocket and that the center walls of the caisson were never constructed as high as the perimeter wall. Be that as it may, each caisson was sunk and the east caisson did not tip until after the claimant had excavated soil from underneath the center and easterly third, leaving the westerly third resting upon solid earth. The Court of Claims has found that the east caisson was stable when floated and was stable when it landed on the bottom of the river.
There is no difference of opinion between the members of our court upon the law of the case. The majority readily concede both that the memorandum of July 15, 1927, constituted an order and that the contractors might rightfully presume that the body of the caisson was proper in design and possessed the quality of stability. The entire question with relation to this claim is one of fact. The facts have been resolved by the court below in favor of the defendant. These findings are borne out by the record. There was no breach of the contract by the State. The judgment of the Court of Claims dismissing this item was proper and is affirmed.
McNamee and Crapser, JJ., concur; Hill, P. J., dissents, with an opinion, in which Heffernan, J., concurs.
Dissenting Opinion
(dissenting). The claimant contracted with the State of New York to construct the two main piers of the Mid-
It was intended to permit dredging through each of the twenty-five pockets, if necessary. No caisson as large had ever been so designed. The original plans contemplated that half the pockets should be available for dredging and half for loading, i. e., to be closed at the bottom and filled with a heavy substance which would increase the weight and correspondingly the tendency to sink, and also make for greater stability by lowering the center of gravity.
Lack of stability of the caisson disturbed the State’s engineers and the contractors long before it rested on the river bottom. Claimant’s vice-president, writing the engineers on May seventh, said: " There seems to be some question as to the stability of our caissons at Poughkeepsie. We have got one caisson to 30 feet draft and it apparently is not as stable as it was. I believe Mr. Moran intimated that when we were down 40 feet we would begin to see a variation of stability; and I would like to have the engineering figures from you on this matter of stability.” The letter, further, discusses the necessity for ballast and concludes: “ We can, of course, put in some stable ballast, which probably we would do rather than trust to the water. However, we should like to have the theoretical side of this question figured out, to see where we are at.” On May ninth the State’s engineers, writing the State’s resident engineer, said they were considering the question of stability of the caissons and directed that the perimeter walls be carried up ahead of the interior walls. This would tend to keep the center of gravity low and permit the placing of ballast in the bottom of the caisson without submerging the entire structure. In the letter it is stated: “As it becomes necessary ballast consisting of sand or gravel should be placed in the pockets of the caisson.” On the fourteenth of the same month the engineers wrote to the
The State Superintendent of Public Works urged the necessity of speed upon the contractor by a letter of June sixth. The engineers in charge did likewise on June eighth. On June tenth the contractor, replying, recited the difficulties that arose through instability. The letter says: “We have had a good deal of experience in sinking caissons, but never before as large a one as these, nor so designed, with no cutting edge and with no stability; and the paramount idea in our minds is the safety of these caissons.” The letter terminates: “ I am writing you at length so that you may know the exact position we are in. We are doing the work in a great measure regardless of expense, our only idea being to make time, but we are in a position right now where we think safety is the governing feature, though we hope soon to be over that part of the work and can then go the whole thing to the limit.” On July eleventh the east caisson had sunk into the river bed only about eight feet, with seventy feet yet to go. The State Superintendent of Public Works summoned the State’s engineers and the contractors to a conference on July fifteenth. The result was summarized in the following instructions: “Mid-Hudson Bridge—■ Conference at Poughkeepsie July 15, 1927. Conclusion; — Bast Caisson. (1) Continue removing bottoms. (2) When the bottoms removed on west side correspond to the open pockets on the east side, begin dredging in pockets and continue dredging until it is safe to remove more or all pockets.” The Court of Claims has found: “ The conclusions above set forth constitute an order to the claimant from the State of New York’s accredited representative, which order
The State’s position is epitomized with graphic laconism by the Court of Claims in one of its findings: “ The caisson listed because there was a hole dug under one side of it and the caisson fell into the hole.” In examining the proof to find support for this, we should keep in mind that the total bottom area of the caisson with all the false bottoms in place was 7,380 square feet, and that it had been sunk eleven feet into the bottom of the river, displacing 81,180 cubic feet (almost exactly 3,000 cubic yards) of soil in the bed of the river. Considering the depth of the excavation underneath the three easterly open pockets and the five center pockets, a comparatively negligible amount of this displaced earth had been dredged and removed, thus of necessity it had risen about the outside of the caisson. The State points to the dredging on June fifteenth earlier mentioned, as providing the hole. It will be recalled that the court has found this work was done in an effort
Under the conditions disclosed in this case, our authorities require that the unquestioned expenditure incurred by claimant in the righting of this pier should be borne by the State. (Faber v. City of New York, 222 N. Y. 255; Borough Construction Co. v. City of New York, 200 id. 149; Gearty v. Mayor, etc., of New York, 171 id. 61; Mac Knight Flintic Stone Co. v. Mayor, etc., of New York, 160 id. 72.) These authorities are sustained by the dictates of fairness and equity. The State embarked upon this large project for the convenience of the public, with the hope of financial gain which, according to common reports, has been realized from the tolls charged for the use of the bridge. The contractor was subject to a control that was exercised by the State's accredited representatives. They determined the exact type and design of the caisson, they directed the manner in which the work of sinking should be done. The untoward tipping was an incident unexpected, but within the limits of possibility in this venture. The expense of correction should be paid as an extra labor item.
I favor a reversal of the judgment of the Court of Claims in so far as it disallowed the item for the work of righting the pier, and a judgment in favor of the claimant for the amount of the claim, with costs and interest.
Heffernan, J., concurs
Judgment affirmed, with costs.