204 A.D. 535 | N.Y. App. Div. | 1923
The learned court at Trial Term directed a verdict. The defendant contends that the complaint should have been dismissed, because there is no proof that the giving of a bond by the plaintiff, as required by the contract herein, had been waived by the defendant, and it is claimed the plaintiff has failed to establish that the engineer arbitrarily and unreasonably refused to issue a final certificate.
The action was upon a contract for a balance due of $13,798 for the reconstruction of street railroad tracks belonging to the defendant on Westchester avenue in The Bronx. There was $36,249 paid on account of work done under the contract, and at its completion the engineer refused to issue the final certificate for the work, and the defendant has refused to make the final payment thereon.
The provision regulating the giving of a bond reads (§ 31 of the contract): “ The contractor herewith delivers to the Railway Company a bond of a Surety Company satisfactory to the Railway Company to indemnify and save harmless the Railway Company against and from all suits and actions of every nature and description arising out of any claims by patentees of any process connected with the work or any material used upon the work, as well as for the full performance and completion of each and every of the provisions of this agreement, which bond is in the sum of $10,000.00.”
This bond was not given. The contractor claims it was waived. Prior to beginning work the contractor asked, in writing, that this provision be waived; but the defendant replied that it would not waive the bond, and requested plaintiff to furnish the bond or a certified check in the same sum. Neither was furnished by the plaintiff. Five days after defendant’s engineer had refused, in writing, to waive the bond, the track reconstruction was started. This was twelve days after the engineer had notified the plaintiff to proceed with the work.
Plaintiff’s claim of waiver is based on the wording of the contract requiring the bond. It is not recited in the language of a condition
The contract goes on to provide that the engineer has the complete right to give directions to the plaintiff as to how the work was to be done, and no moneys can be had by the contractor unless the work shall have been duly certified by the engineer, and he has been fully convinced that all the requirements of the contract have been complied with to his satisfaction. The engineer admits that prior to the laying of the pavement by the contractor who had charge of that work for the city, he gave no further instructions with respect to reconstruction of the existing tracks, so as to put them in proper condition for the new pavement; but
Paragraph 4 of the contract provides: “ All of the work shall be performed in the best manner, all materials used shall be of the best quality, and a sufficient number of persons shall be at all times employed to execute the work with due dispatch, all to the satisfaction of the Engineer. * * * No inspection, approval or acceptance of any part of the work or of the materials used, or any payment on account thereof, shall prevent the Railway Company from objecting to the character of the work or the materials used at any time thereafter during the life of this agreement.”
This not only required the contractor to perform the work in the best manner, but also exempted an inspection, or approval or acceptance of any part of the work from being used to prevent an objection to the character of the work thereafter during the life of the agreement. This interpretation of item 1 of the specifications by the learned trial justice too narrowly restricted the duties of the contractor, when considered in connection with all the other items of the specifications and the provisions of the contract, especially specification 5, which reads: “ After the track is properly surfaced it shall be brought true to line and then thoroughly tamped.”
The whole contract and all the specifications read together show that the phrase upon which the trial court relied related rather to the nature or kind of the work to be performed than to the quality thereof.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide the event,