154 N.Y.S. 76 | N.Y. App. Div. | 1915
This action was brought to recover the sum of $122,325.80, the amount claimed to be due under a contract for the construction of the Croton Falls reservoir. Plaintiff has recovered judgment in the sum of $35,388.95, and appeals from so much thereof as fails to give him the amount of certain claims aggregating $270,968.86, with interest. The judgment was entered by direction of the court, which dismissed the additional claims referred to, and refused to submit the issues involved in such claims to the j ury. The Croton Falls reservoir, which is one of the largest in New York city’s Croton water system, was initiated under the original aqueduct commission, and after the abolition thereof was completed by the department of water, supply, gas and electricity of the city of New York, in which the powers of the former commission were vested by chapter 220 of the Laws of 1910 (amdg. Greater New York charter [Laws of 1901, chap. 166], § 518). The contract was one for a unit price, as distinguished from a lump sum. The questions in controversy arise over the action of the city’s engineer in claiming that certain units of the work should not be paid for at all, and that certain other units should he paid for at a less price per unit than that claimed by the contractor. The final estimate of the city’s engineer fixes the aggregate contract price at $1,319,156.99. Plaintiff’s contention is that the correct amount is $1,590,125.85. Of the amount shown by the final estimate, $31,697.29 had been withheld by the comptroller of the city of New York, and it is that amount, with interest, for which the plaintiff has recovered judgment, and from which judgment the city does not appeal. The balance, being the amount now in controversy, is made up of eight items. We shall state
(1) Plaintiff claims that it placed class A monolithic concrete around the reinforcing rods in the main dam, above elevation 280.8, under due order from the engineer, and that it should have been allowed and paid therefor at the contract price of $7 per cubic yard (the price for class A concrete), instead of the amount finally allowed by the engineer, $2.65 per cubic yard (the contract price for cyclopean masonry). The difference in the contract price, based upon these two units, is $58,043.79.
The method of construction of the portion of the dam in question is as follows: Its faces are made of concrete blocks so placed in courses as to overlap or bond, and in every second course parts of the blocks extend inside the face and towards the center of the dam, being called “headers,” and forming a bond between the face and the interior mass. Every third block in every second course is a “header,” and the face blocks not used as headers are called “ stretchers.” Inside of these block faces the dam consists, for the greater part, of cyclopean stone masonry. This masonry is composed of very large quarry block of irregular sizes and shapes, weighing up to six tons, the requirement being that they “ shall be sound, clean, strong and durable,” and “as large as can be economically quarried, transported and handled.” This construction was to be used under the specifications for substantially the whole of the main part of the dam except the faces. The method of laying these stones is specified in detail under section 85 of the contract, under which the faces of the dam were to be built somewhat in advance of the interior. Wet concrete was to be deposited in sufficient quantities in low places in the work, and before it had attained its initial set large stones were to be lowered into it as close together as possible. The stones were then to be joggled with a bar so as to settle them well into the concrete, and the concrete was to be worked with suitable tools so as to force the escape of entrained air or water, and insure the filling with concrete and mortar of all spaces between and beneath the large stones. If smaller stones could be imbedded between the large stones, and between those stones and the face of the
In the winter of 1908-1909, Mr. Cook, the acting chief engineer, stated to the contractor that bad cracks had developed in the Cross River dam, and that the engineers were considering reinforcing the dam in question to prevent a similar recurrence. To do this it was decided to place two rows of rods inside the facing blocks above elevation 280.8, in the placing of which great care was required to be used by the engineer to lay the bars level and to insure a continuous straight line. The ends of the rods were forged into hooks which were interlocked to form a continuous, taut and level line along the entire length of the dam. Wedges were driven where necessary to keep this line taut, as it had to be perfect in alignment. When the rods were placed, they were surrounded with concrete. Before this reinforcing had begun the contractor claimed that it was physically impossible to place the bars in cyclopean masonry, and that the plan must be modified before the work reached the elevation in question, where the reinforcing was to begin, otherwise the contractor would positively stop work. It claimed, as one reason .for the inability to place reinforcing in cyclopean masonry, the irregularity of the large stones projecting at different angles and at different heights and the variation of shapes of the stones, which made the maintenance of perfect alignment through such construction impossible. The engineer, Cook, changed the classification and furnished a drawing showing what is described as “Limit for classification,” at a distance of one foot from the headers. The contractor claimed that the distance from the header at which the classification as class A concrete should cease, and that of cyclopean masonry begin, should be three feet, but the engineer said he would not classify beyond one foot, which was, he testifies,
Upon these facts, and the others appearing in the record in detail, it would seem that questions of fact as to this first item were presented for the jury, and that plaintiff should have been allowed to go to the jury thereupon. It specifically asked to be allowed so to do upon the question of whether it had “placed monolithic concrete, class A, in that part of the main dam that was reinforced by the steel rods, namely, the part above elevation 280, and below the roadway, and inside the facing blocks and outside the line one foot within the headers indicated by section 508 as the limit for classification; ” also as to whether the engineer had directed the contractor to put hla.s« A concrete in the places described; also whether or not the
(3) The contract provides that dimension stones shall be measured for payment as of the “sizes of the smallest rectangular blocks from which the separate stones can be cut.” (§ 89.) The city’s chief engineer, Wegmann, in authority at the time when the stones in question (laid on the top of the waste weirs) were furnished, decided upon an allowance of three inches on all sides of the stone as reasonable. This allowance was reversed by De Varona, as chief engineer of
The other items of the plaintiff’s claim which were dismissed, we think were properly disposed of by the court and do not require further discussion. The judgment appealed from, in so far as it dismisses the three items of the plaintiff’s claim heretofore enumerated, will, therefore, be reversed, and a new trial ordered as to the same, with costs to the appellant to abide the event.
Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.
Judgment in so far as it dismisses the three items of plaintiff’s claim enumerated in opinion reversed, and a new trial ordered as to the same, with costs to appellant to abide event. Order to be settled on notice.