101 N.Y.S. 726 | N.Y. App. Div. | 1906
Lead Opinion
This is an appeal.from an order of the Special Term denying a writ of peremptory mandamus requiring the comptroller to pay
It appears that that amount was arrived at by multiplying 50,000 estimated cubic yards-by ninety-nine cents," the - price bid. The specifications provide'd that the work to be done was the dredging in. such slips or portions of. such slips or on the bulkhead wall areas "as should from time to time be directed by the engineer, and
• The petition sets forth that the company has actually dredged 59,391 cubic yards which at the contract price of ninety-nine cents per cubic yard, amounted to $58,979.09. . , ■
•It appears that there is no dispute as -to the amount of the dredging actually done by the contractor. The claim of the city is that it is clear from the language qí the contract that -inasmuch as this dredging was not to be at one particular place or for one particular job, but was to be done here and there as the exigencies of the harbor might require and the engineer of the dock department direct, that the repeated language of “ about 5'0,000 cubic yards ” fixed that amount, with the. addition of five per 'cent thereon set forth in the paragraph of the contract in regard tó extra work só that the sum total provided for was at the most 52,500 cubic yards. As to payment for this amount there is no dispute.
The provisions of law. in regard to the letting of contracts for public work are precise and definite as we have recently had occasion to point out in the two recent cases of Gage v. City of New York (110 App. Div. 403) and Cahn v. Metz (115 id. 516) and are to be observed in letter and. spirit.
The appellant claims, as I understand it, that there is no limit to the amount of work which may be done under this contract, and for which, having, done, it would be entitled to payment by the city. It says the phrase, “ about 50,000 cubic yards,” means any amount which the engineer might certify to as having been done. If this is so there would be nothing to prevent bids being advertised for a comparatively small amount of work, the size of which would not induce bidders to enter in to . competition' as the prospective remuneration might not justify the collection of the necessary plant, materials and men. Thereupon an award might be given at an extravagant price for a small amount of work which thereafter might be enormously enlarged. Such an interpretation does not seem reasonable, and while the very nature of the kind of work
Mor is the proceeding by writ of mandamus the -proper way -to determine "the question here, in valved. The appellant claims that inasmuch as it has obtained the certificate of the engineer as to the amount of dredging done, and as the contract makes his certificate final and conclusive, that it has an absolute right to payment by the comptroller. The answer to that is that the contract does not make the certificate of the engineer final and conclusive as to the legal interpretation of the terms thereof. In tlxe absence of fraud or mistake sufficient to constitute constructive fraud, the certificate of the engineer is final and conclusive so far as the qiiantitv of exóávation done, but whether that amount is under the terms of the contract is a question for the court and not for the engineer, and, therefore, the proceeding is not well brought: !
The petitioner should be remitted to its action' in order that it may establish therein the validity of its claim against the city, if it can. ■ !'
The order appealed from should be affirmed, with costs and disbursements. !
Patterson, Laughlin and Scott, JJ., concurred.'
See Laws of 1901, chap. 466, § 149, as amd. by Laws of 1904, chap. 247.—[Rep. ■
Concurrence Opinion
T concur with Mr. Justice Clarke upon the ground that a proceeding by mandamus is not the proper remedy, but that the petitioner should be remitted to anxaction at law .to- establish his claim,' if any, against the defendant. !
Order affirmed, with ten dollars costs and disbursements. -. Order filed. • ¡