100 N.Y.S. 68 | N.Y. App. Div. | 1906
Lead Opinion
The plaintiff is a corporation engaged in the business of making plans and specifications and superintending the. erection of buildings as architect. Prior to the 25th day of October, 1900, a site had been duly selected for the erection of the Sixty-ninth Regiment Armory, between Twenty-fifth and Twenty-sixth streets, on Lexington avenue in the city of New York. The armory board of that city7, consisting at that time of the mayor, two senior ranking officers of or below the grade of brigadier-general, in command of troops of the National Guard quartered in the city of New York, the president of the department of taxes and assessments, and the commissioner of public buildings, lighting and supplies (Military Code [Laws of 1898, chap.' 212], § 134), by resolution directed the plaintiff to prepare plans and specifications for such armory building so proposed to be erected, with estimated cost thereof. Under this employment preliminary plans and estimates were furnished and approved by resolution of that board, on the 23d day of January, 1901, and an appropriation. of $500,000 was asked therefor from the commissioners of the sinking fund of the city óf.New York, whose final approval and action was necessary for the raising of funds therefor. On the eighth of March following, the commissioners of the sinking fund, by7 resolution, authorized the armory
' The testimony discloses that from the third of April to about the middle of June following a large part of the force of plaintiff’s office was engaged in making such plans, and during the summer and fall following the principal part of the specifications were completed. After these plans and specifications had been so completed and approved on the 19th of November, 1901, by resolution, the armory board directed the entering into with plaintiff of a written contract for the preparation of such plans and specifications and the supervision of the construction of such armory building. This was done, and by such contract it was provided that the plaintiff should receive five per cent upon the cost of the erection of the building—such commission being subdivided, one per cent for preliminary studies and sketches, two and one-half per cent for completed plans and general working drawings and specifications and detail, and the balance for further working plans and supervision of erection — this subdivision being in case of the abandonment or suspension of the work. By this contract it was provided that the plans and specifications, for the purpose of. enabling accurate and reliable bids or estimates, should be completed on or before the 15th day of October, 1901, a date prior to that of the contract itself. The total cost of the building, including architect’s fees, it was provided, should “be kept well within the sum of” $450,000,
The plaintiff seeks to compel the city to pay for the plans and specifications so furnished, as well as damages for breach of the contract. The first cause of action alleged is for the two and one-half per cent on the proposed cost of the building for the plans and specifications, and the second cause of action is for damages for breach of the contract by wrongful discharge.
The complaint states that the original hiring was October 25, 1900, but on the tidal the plaintiff was allowed to amend by adding appropriate allegations as to the making of the written contract ’of November 19, 1901.
The plaintiff recovered two and one-hálf per cent upon $450,000 for the plans and specifications furnished, amounting," with interest added, to $11,835.10, as well as $5,000 damages for wrongful discharge and refusal to.permit it to complete its contract to superintend the erection of the building and do the work necessary to earn the balance of the five per cent stipulated.
The" defendant appeals from this judgment, asserting that the
We think it must be held, under the doctrine of this court enunciated in Lewis v. City of New York (106 App. Div. 454) and Keane v. City of New York (88 id. 542) and Walton v. Mayor (26 id. 76), that the armory board had no power to incur an indebtedness for architect’s fees, which the city became liable to pay, until it had- been authorized to incur such indebtedness by resolution of the commissioners of the sinking fund. The resolution of those commissioners, passed March 8, 1901, did give the armory board authority to employ plaintiff, which authority they exercised by their resolution of April third following, directing plaintiff to prepare detailed plans and specifications for the erection of the proposed armory. It is only for services performed by plaintiff after this time that the city is liable, if it is liable at all.
It was not necessary to let the contract for the preparation of plans and specifications for the proposed armory by competitive bidding. The services required scientific knowledge and skill, and that character of service need not be obtained by bids. (Peterson v. Mayor, 17 N. Y. 449, 453.) Nor was it necessary that the armory board enter into a written contract with the plaintiff' for the performance of such services. That might be done by resolution and subsequent direction.
The plans and specifications were prepared aftér the third of April, and before the written contract, which was not a necessity. If the plaintiff substantially performed its contract, which, we think, was to furnish plans and specifications for an armory which could be erected within the sum of $450,000, then it is entitled to recover therefor the customary price, which was proven to be two and one-half per cent upon the cost of the building. This, however, the plaintiff did not do. The resolution of March eighth, appropriating
An architect employed to furnish plans and specifications for the erection' of a building is entitled to remuneration therefor, if they are made in accordance with the directions of the owner. He cannot recover, however, where the owner stipulates that the plans and specifications shall be for a building not to cost over a specified amount, if the plans and specifications made are for a building substantially exceeding that sum. (6 Cyc. 31; Maack v. Schneider, 57 Mo. App. 431; Feltham v. Sharp, 99 Ga. 260; 25 S. E. Rep. 619; Ada Street M. E. Church v. Garnsey, 66 Ill. 132.)
. The plaintiff failed to bring itself within this proper and salutary rule, and, therefore, should not have been permitted to recover under its first cause of action.
There cannot be said to have been an acceptance of the plans and specifications by the armory board, notwithstanding they did not meet the restriction as to cost of erection. That fact could not be determined until the bids were received and it was thus found what the cost would be, and it is quite doubtful if the armory board would have the power to bind the city by the acceptance of plans not in conformity with the contract and the cost stipulated by the commissioners appropriating the money,. If any other reason were
As to the second cause of action, it is manifest that 'the plaintiff in no sense showed such a substantial performance of its contract as to entitle it to damages for breach of hiring. It furnished no plans and specifications from which an armory costing within $150,000 could be erected, nor did it conform to the plans already made to a building costing within that sum. The armory board, therefore, on disclosure of the cost as shown by the bids, had the right to reject the plans and to dispense with the plaintiff’s services and terminate the contract. Here, too, the court erred in charging the jury that there was no ground for the discharge of the plaintiff, to which the defendant excepted.
The plaintiff complains that it was not asked to alter the plans so that the cost of erecting the building would come within the stipulated amount. It was for the plaintiff to perforin its contract and to show that it has done so before it asks damages for breach by the other party.
It is quite evident that the plaintiff performed a large amount of work for which it would be just that it should receive some compensation, and we have endeavored to find some ground upon which plaintiff could recover the fair value of the work and labor which it performed. The resolution of March eighth empowered the armory board to employ an architect. By the resolution of April third that board employed plaintiff. It was necessary for the armory board to obtain accurate information with respect to the kind of armory that should be erected. Preliminary sketches might and might not be accurate with respect to disclosing the cost. Plaintiff did a large amount of work in elaborating the ideas of the armory board with respect to the proposed armory and finally by its labors demonstrated that the building could not be erected within the sum provided. The necessity for a larger appropriation was finally recognized by the commissioners of the sinking fund, and they increased it, and the armory in the end was erected at about the cost called for by plaintiff’s plans. The work performed by the
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
McLaughlin and Laughlin, JJ., concurred.
The question of want of power and authority in the armory board to employ the plaintiff as architect, which in effect amounts to the plea of ultra vires, was not raised by the answer, and, therefore, the defendant was precluded fro.m asserting it upon the trial or upon this appeal. (McNulty v. City of New York, 168 N. Y. 117; Griesa v. Mass. Benefit Assn., 39 N. Y. St. Repr. 1; affd., 133 N. Y. 619.) But if we regard it as within the issues, we think it is not sustained with respect to the sérvices rendered prior to July 22, 1902, when the armory board adopted the resolution terminating the services of the plaintiff.
. It was necessary for that board to have the preliminary plans, and it is not disputed that they employed the plaintiff to prepare and furnish them, and that the plaintiff did so. In order to constitute a legal and binding contract upon the city, this employment should be approved and authorized by the sinking fund commissioners. It does appear that, acting upon the request of the armory board, the said sinking fund commissioners*,on March 8, 1901,
It is true that the plaintiff had made the preliminary plans and the subsequent detailed plans and specifications before this contract was actually executed, but it is obvious from the resolutions of the armory board and the dealings between that board and the plaintiff that the contract itself was intended to cover the services which the plaintiff had then performed, and there is no suggestion that any other or further plans were to be prepared. In other words, it was a formal contract in writing by which the plaintiff was employed, and which, recognizing the work that had been performed, was in effect a ratification and a promise to pay for the same.
For the value of all such services the plaintiff, in my opinion, is entitled to recover. It was impossible without the work it performed for the armory board to determine just what the building would cost, and it was the part of- prudence to ascertain this fact in order that it might be made the basis for the application which was necessary to the sinking fund commissioners for the appropriation of the necessary amount to complete the building.
Had these plans 'been adopted and the building been constructed
By the action of the armory board in not giving the plaintiff an opportunity — when it obtained the increased appropriation—to furnish additional plans, I think the parties were placed in exactly the same position as in the case of an abandonment or suspension of the work, and ffor that contingency the contract itself provides' what the compensation should be. This would entitle it, as charged by the learned trial judge,, to two and one-half per cent upon the cost of the building, which was to be at least $450,000, and this amount, $11,250, with interest, the plaintiff should recover.
Upon the second cause of action for damages for the breach I concur with Mr. Justice Houghton, and for the reasons assigned by him I think that upon the plaintiff’s stipulating to reduce the verdict to th'e amount suggested that the judgment as so modified should be affirmed; otherwise, that the judgment should be reversed and a new trial ordered, with costs, to the appellant to abide the event.
Concurrence Opinion
Judgment and order reversed, new trial ordered, costs to appellant to abide event.' Order filed.
