1 Barb. 584 | N.Y. Sup. Ct. | 1847
The contract signed by the plaintiff did not specify the level on which Union-street should be graduated. That ordinarily depends upon a profile on file in the office of the street commissioner. Such profile is generally exhibited to the contractors, and forms the basis of their estimates. The profile on file in the office of the street commissioner, at the time when the contract was made, was inaccurate. It represented the proposed level at the intersection of Union and Columbia-streets as eight feet above high watermark. The corporation had at first graduated' the streets in that part of the city at that height, and drawn the profile accordingly j
If the profile constituted a part of the contract, then the plaintiff performed extra work for which he has a valid claim against the defendants. If, however, the contract was made in reference to the resolution of the common council to raise the grade of the streets in that vicinity, then, although the plaintiff may have miscalculated the work, greatly to his disadvantage, he could not, independently of the award, recove! for the alleged extra labor from the corporation. Whether the profile was, under the circumstances, a part of the contract or not, was a question of fact for the referee decide. There was testimony both ways; and if he came to the conclusion that it was, and the case turned upon that, his report should not be set aside as against the weight of evidence. But the plaintiff’s claim rested, as I think, mainly upon the award. Both parties submitted the matter to arbitrators, a majority of whom were selected by the defendants. They awarded to the plaintiff $>787,88 for the extra work, and the defendants, at a subsequent meeting, virtually assented to the award by passing an ordinance to raise 'the money.
It is contended by the defendants that they had not the power to submit the matter to arbitrators. Without inquiring how far they may be estopped by their solemn acts and the consequent conduct of the plaintiff from raising this objection, I am clear that it is not well founded. By the 40th section of the act incorporating the city of- Brooklyn, the common council are authorized to cause all the streets within the first seven wards (in which the street in question is situated) to be graded, levelled,
An objection was also raised to the manner in which the arbitrators were appointed. That probably was based on the supposition that the acts of a corporation, to be binding, must be under their corporate seal. The submission to arbitration was by a resolution or ordinance adopted at a meeting
The submission may have been somewhat informal; but the form is a matter of indifference. It is sufficient if it appears from the acts of the parties that they «intended to arbitrate, and that what should be done by the arbitrators should have the effect of an award. All that is very clear from the acts of both parties. The defendants referred the claim to three persons, two to be chosen by- themselves and one by the plaintiff. Subsequently the report of those persons on the subject of the claim is presented to the defendant, and they direct money to be raised “ in accordance with the report.” The inference is that the whole was an arbitration, conducted by persons selected by the parties; and such inference arises from the recorded acts of the defendants.
But whatever objection there may have been either to the capacity of the corporation to submit to arbitration, or to the manner in which such submission was made, there can be no doubt as to their power to agree to pay for graduating their streets, whether before or after the work has been performed, and however, the amount may have been ascertained or de.termined. The resolution to add the sum reported due by the arbitrators to the assessment for the work, was substantially acknowledging the extent of the debt, and a promise to pay it. When assented to by the plaintiff, as it was, the claim became, if it had not been before, valid against the defendants to that extent. Of course the resolution could not then be rescinded except by the mutual agreement of the parties. The last resolution of the corporation was consequently inoperative.
The objection that the action was misconceived is also untenable. It is well settled that when there are no arbitration bonds, the transaction respecting the reference is considered as
The motion to set aside the report of the referee must be. denied with costs, and the report must stand confirmed.
Ante, p. 325.