9 N.Y.S. 893 | The Superior Court of the City of New York and Buffalo | 1890
The complaint presented two causes of action. As to the first cause of action, the trial judge directed the jury to find for the plaintiff in the sum of $44,163.26, the full amount of his claim, as far as that cause of action was concerned, and the defendant excepted. As to the second cause of action, which was for the recovery of $62,264, the trial judge dismissed the complaint, and the plaintiff excepted.
As to the first cause of action, it was brought by the plaintiff, Bernard Brady, as assignee of John Brady, to recover the amount ($37,371.81) claimed to be due said John Brady by the defendant, under a contract for regulating and grading Ninety-Fifth street, in the city of New York, from Tenth avenue to Riverside drive. It is admitted by the defendant that the work done by Brady, the assignor, was accepted and received by the commissioner of public works, acting on behalf of the defendant; that all the excavation of the earth'and rock called for in the contract referred to was completed in due time. All the work, so far as required by any of the officers of the defendant under the contract, has been performed by the plaintiff’s assignor, and the work has been accepted by the defendant. A certificate - of completion and acceptance, signed by the surveyor, by the superintendent of street improvements, by the chief engineer of the Croton aqueduct, and by the'commissioner of public works, as required, was duly made and filed. The work provided for in the contract was, by its terms, to be completed to the satisfaction of the commissioner of public works, and in substantial aeeorda'hee with the specifications and plans therein mentioned. It is not disputed that the work was done as required and directed by these officers, who had the work in charge on behalf of the defendant. The defense is that a certain portion of the rock was not in fact taken out two feet below the curb. The testimony produced to support that position is indefinite and uncertain. The witness does not deny that the work was done under the charge of the engineer and assistant officers of the defendant, and in all respects as directed by them. There is nothing in the testimony to contradict the evidence on behalf of the plaintiff that the rock was substantially taken out to the satisfaction of the commissioner of public works, and of the other officers of the defendant. In fact the defendant accepted the work, and never required the plaintiff’s assignor to do anything more in performance of the contract; and the street has been in genera] use for four years since it was taken possession of by the defendant. The various officers of the city who have signed certificates testifying to the sufficient completion of the work by the contractor, Brady, must be regarded as representing the city; and, in the absence of any evidence of fraud, their deliberate certificate must be regarded as binding on the city. Mulholland v. Mayor, etc., 113 N. Y. 632, 20 N. E. Rep. 856; People v. Stephens, 71 N. Y. 550. The acceptance of the work, of itself, by the city, without objection, and the application of the work, when accepted, to public use, are strong evidence that the contract has been practically and sufficiently carried out. Kingsley v. City of Brooklyn, 78 N. Y. 200; Smith v. Alker, 102 N. Y. 87, 5 N. E. Rep. 791. Thus the preponderance of evidence was clearly on the side of the plaintiff, and the learned trial judge was justified in directing a verdict for the plaintiff. It appears that the learned counsel for the plaintiff and for the defendant both asked for the direction from the court; and it is my opinion that, as to the first cause of action, the direction of the trial judge was clearly right.
On the whole case, I am of the opinion that no substantial error has been committed at the trial, and that the judgments as entered below should be in all respects affirmed.
