62 N.Y.S. 284 | N.Y. App. Div. | 1900
The sole question here is whether the referee’s conclusion, that the plaintiffs were not entitled to the profits which they would have realized upon their contract but for the defendant’s breach' thereof, was correct. The referee found as a fact that the plaintiffs had performed the contract on their part until the defendant refused to pay an installment of $4,535.51, for which a certificate was duly made by the proper officials on the 24th day of March, 1898, which certificate entitled the plaintiffs to payment. He further found that “ at many different times the plaintiffs demanded of the comptroller * * * payment ” of this sum, but that the comptroller refused to pay it or any part of it; also that the plaintiffs were “ informed by the officers' of the defendant that the contract * * * was invalid and that no further payments could of would be made thereunder.” Thereafter
What would be inexcusable or unreasonable delay, however, on the part of an individual or a partnership,- or even a business corporation, might not be such in the case of a municipal corporation, with its complete system operated' through independent official agencies. The contractor who deals with such a public corporation should not look for the same promptitude of payment as though he were dealing with private parties. He must expect occasional delay and inconvenience as the natural result of the necessary formalities prescribed by law, and • also from unforeseen contingencies. such as the exhaustion of the fund applicable to the work. (Drhew v. Altoona, 121.Pen-n. St. 401.) Here, however, the Referee has found that the officer's of' the city deliberately repudiated, the plaintiffs’ contract. The “ acts, conduct and declarations ” of' these officers were equivalent to a deliberate refusal to perform on the city’s part. It is.said that the
It is also said that the statement made by the deputy comptroller (Daly) was not as broad as that found by the referee. What Mr. Daly actually said, according to the plaintiffs’ testimony, was that they (meaning the comptroller and himself) “ could not pay on contracts on account of the debt limit being overdrawn, as the contract was invalid.” We cannot, upon this appeal, quarrel with the referee’s paraphrase of this language. Is was certainly some evidence tending to support his finding, and, as the plaintiffs are the appellants, they have a right to a review of the legal conclusion drawn therefrom. We may, for the purpose of sustaining a judgment, look into the evidence to supply a fact not found (The Equitable Co-operative Foundry Company v. Hersee, 103 N. Y. 25), or possibly to clarify a fact obscurely found, but not to eliminate or vary — for the benefit of the respondent —- a fact which is clearly and distinctly found. The respondent must abide by the finding against which it has not appealed and upon which the judgment stands, and the appellants have a right to its acceptance by the court as true and to a decision as to the correctness of the legal conclusion drawn therefrom. Indeed, the court is required, in cases of inconsistency, to accept those findings most favorable to the appellant, and the latter is entitled to rely upon them in aid of his exceptions. (Israel v. Manhattan Railway Company, 158 N. Y. 631; Parsons v. Parker, 159 id. 16.) We are constrained, therefore, to order a new trial in this case. We do so with great reluctance, for we cannot-resist the impression that the referee’s finding was inadvertent. Mr. Daly distinctly denied the statement attributed to him. The plaintiffs’
Yan Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.
Judgment reversed, new trial. ordered before another referee, costs to appellants to abide event,