61 N.Y.S. 374 | N.Y. App. Div. | 1899
Lead Opinion
This action was brought to recover upon three separate causes of action. The first was to recover the balance alleged to be due for
Upon the 'trial the third cause of action was dismissed by the court and the plaintiff excepted, and the question as to the amount of work performed by the plaintiff under the first cause of action was submitted to the jury who found a verdict for the defendant against the plaintiff, upon the defendant’s counterclaim,- for $20,694, and upon that counterclaim judgment was entered for the defendant against the plaintiff, from which judgment the'plaintiff appeals.
The contract upon which this action -was brought was executed on September 21, 1891. There was annexed to this contract a proposal for estimates for regulating and grading Dyckman street from
By the specifications which are incorporated in the contract, the work to be done is stated as follows : “ The street for its whole width is to be regulated and graded where required, in accordance with the plan and profile of the said street, dated July 15, 1891, on file in the bureau of street improvements. The carriageway and sidewalks are to be properly shaped. That portion- of the street which is above the grade lines is to be excavated, and such and so much of the material excavated as may, be fit for the purpose, and as may be necessary, shall be filled in those parts of the street which are below the grade lines, in the manner hereinafter provided. * * * But only the difference between the total quantity of filling to finished grade and line as shown in cross section, and the total quantity
The remaining question in the case is as to the right of the plaintiff to recover under the first cause of action and of the defendant to recover under the counterclaim to that cause of action. The plaintiff proved the certificate of the officers mentioned in the contract, from which it ajipeared that the sum of $12,343 was due to the plaintiff from the defendant for work done under the contract, and then rested. The defendant then offered evidence tending to show that the certificate in question was false and to prove the actual amount that the plaintiff was entitled to receive under the
The defendant assumed this burden, and offered evidence tending to show that the actual amount of the filling done by the plaintiff was very much less than that stated in the certificate of the engineer. The sole question was as to the number of cubic yards of filling for
The court charged the jury:.“ The burden of proof upon this point is, therefore, upon the defendants, and the question, therefore, is, have they overcome the plaintiff’s case as supported by the certificates, and the proof given by the plaintiff in rebuttal of the defendants’ case by sufficient evidence on their own part? They are bound to do it by proof of facts and circumstances which are convincing, and not by more theory not founded on the actual facts.” That was a correct statement of the duty of the jury, and certainly as favorable to the plaintiff as was justified. We think, therefore, that the finding of the jury as to the amount of filling actually furnished by the plaintiff was supported by the evidence, and the court would not be justified upon that ground in setting aside the verdict. The effect of this certificate is entirely different
From the whole case we think the judgment was correct and that there was no error committed which would justify a reversal.
The judgment is affirmed, with costs.
Van Brunt, P. J., and McLaughlin, J., concurred; Barrett and Rumsey, JJ., dissented.
Dissenting Opinion
I am unable to concur with Mr. Justice Ingraham regarding the dismissal of the plaintiff’s third cause of action. He holds, in effect, that the plan, and not the contract, determines the amount of work to be done. I do not think that this is in accordance with the language used. • The quantum of work is clearly stated in the contract. It is to regulate and grade a street between designated limits. This provision stands by itself and is plain and explicit. A later clause provides that the “entire work” shall be done “in substantial accordance with” the specificátions and plan. The “entire work” thus referred to can be nothing but the work of regulating and grad ing the street between the designated limits. It is this entire* work which is to be done “in substantial accordance with” the plan.
Both the plan and the specifications were subsidiary to the contract. Suppose the plaintiff had contracted to grade the street for 100 blocks for a fixed sum, and the plan had covered but one block, is i't conceivable that he would have been entitled- to his money upon doing the distance set out in the plan? If the plan and not the contract is to govern, the rights of the parties may depénd upon the manner in which subordinate city officials perform- ministerial acts. It is not possible that a surveyor can cut down a contract to grade a mile of a street- to a contract to grade but a block by making an insufficient plan, or that he can abrogate a contract entirely by making no plan whatever.
The history of" the contract favors this view. It originated in a resolution of the common council passed in May, 1891, that “ Dyckman street, from Hudson river to Exterior street, be regulated and graded.” At this time no plan was in existence. The proposal for bids, which is made part of the contract, recites this resolution, and states that “ sealed estimates for the above worlt ” will be received by the department of public works. There follows the surveyor’s estimate, of the amount of the work; but it is expressly provided that this estimate is only approximate, and -that “Bidders must satisfy themselves by personal examination of the location of the proposed work, and by such other means as they may choose, as to the accuracy of the foregoing estimate, and shall not, at any time after the submission of an estimate, dispute or complain of such statement, nor assert that there was any understanding in regard to the deptli.of the excavation to be made, or the nature .or amount of the work to be done.”
It is urged that the surveyor’s estimate in the proposals is' identical with that indorsed upon the plan, and that this indorsement applies •only to that part of the work which the plan covers. Assuming that this was patent to the bidder, I do not see how it aids the defendant. The bidder is expressly notified that this estimate is only approximate, and that he must examine the work for himself and draw his own conclusions. The city is not bound in any manner by the estimate, whether it was inaccurate as to the ground which it actually covered, or did not cover ground enough. In no case did the city consent to accept it as an indication of the extent of the work, and certainly it cannot be fairly said that the contractor was bound to do so. It was-his right and duty to be guided by the plain language of his contract, not by this tentative estimate.
It is also urged that -great practical difficulty would attend the recognition of the plaintiff’s right to do. the rest of the work. I am unable to perceive the difficulty. It may be conceded that the work could not be finished without a further plan. It was, then, the defendant’s duty to furnish one. It could not defeat the plaintiff’s .i-ight to do the contract work by refusing to disclose the exact manner in which it wished the work to be done. The complaint alleges, and the answer admits, that the plaintiff “ demanded of defendant and said commissioner that such orders and directions be made-and given as will permit plaintiff to fully finish and complete all the work by him to be done under said agreement ” (that is, the whole work specified in the contract proper); but that the defendant refused this demand. I think that this was a breach of the con
It may be added that the legal right of the department of public works to make such a contract as is claimed to have been here made is by no means free from doubt. City officials have no authority to contract except as directed by ordinance, and in so far as they deviate from the resolution of the municipal legislative body their action is void. (Bonesteel v. The Mayor, 22 N. Y. 162.) Here the resolution of the common council was that Dyckman street should be graded the whole distance from the Hudson river to Exterior street. The department was bound to carry out this mandate; and I am not prepared to say that this work, which was all of the same general kind and easily capable of being embraced within a single contract, might be subdivided. If the work might bé subdivided at all, it is difficult to see why it might not be split up into a hundred different sections, to the great increase in the cost. At all events, it seems perfectly obvious that here there was. no such attempt, but that it was intended to execute the resolution at one time and by á single contract.
On account of the dismissal of this third cause of action, I think the judgment should be reversed and a new trial ordered.
Rumsey, J., concurred.
Judgment affirmed, with costs.