210 A.D. 285 | N.Y. App. Div. | 1924
The plaintiffs were the owners of premises in the city of Albany lying between State street on the north and Norton street on the south. A brick building, which once stood upon the premises, had been razed to the first floor, but foundation walls and a concrete basement floor remained in place. The plaintiffs determined to erect upon the premises a nine-story building of modern type. It was a necessary preliminary to remove the old foundations and the basement floor, to shore up the walls of the adjoining buildings and underpin them. General excavations to a new building level were also necessary. On the 3d day of November, 1915, the plaintiffs entered into a contract with the defendant, the W. Shelton Swallow Company, relating to the construction of the new building. The Swallow Company, for a unit price, agreed to do all shoring and underpinning, and to excavate therefor. It also agreed, for the lump sum price of $77,000, to perform all masonry, carpentry, roofing, sheet metal, painting and glazing work, specified in plans and specifications attached, to make general excavations and to furnish all specified building materials to be used in the work contracted for. It agreed fully to perform on or before April 15, 1916. The plaintiffs made a separate contract for the erection of structural steel, specified for the new building, with the Levering and Garrigues Company. This contract was dated October 14, 1915. It provided that delivery and installation of steel grillage should begin on or before December 9; 1915; that superstructura! steel should begin to be delivered on December 23, 1915; that the steel work should be substantially completed on February 3, 1916. The Swallow Company began work upon its contract on November 4, 1915, and continued to work thereunder until about February 14, 1916. On or about this date it discontinued all work and thereafter performed none. The plaintiffs brought this action, and have had a recovery, against the Swallow Company and the Massachusetts Bonding and Insurance Company, its surety, for damages resulting from the failure of the Swallow Company to complete its contract.
The premises upon which the new building was to be constructed were 168 feet in depth and 36 feet in width. This narrow space was bounded on either side by the high walls of adjoining buildings and on either end by public streets. It was necessary for the Swallow Company to start excavations paralleling the walls in
The Swallow Company, prior to February 14, 1916, had been engaged in underpinning walls, excavating for longitudinal and cross grillage, filling trenches with concrete to receive grillage, concreting the grillage and making general excavations for the new basement floor level. On that day the Swallow Company wrote the plaintiffs a letter inclosing a bill for extra work and for damages arising from alleged delays on the part of the steel contractor. It asserted that, in excavating the basement floor of the old building, it encountered underneath the cement, down the center line of the floor, steel grillage which had been placed to support a line of supporting columns; that this grillage was concealed from view and its existence was unknown to it when the contract was made; that disclosure of its existence should have been made to it by the plaintiffs whose architects had themselves long previously caused the grillage to be placed; that it was entitled to extra compensation for the removal of the grillage. It also asserted that the plans and specifications did not indicate that the
The defendants now contend that, when the notice was served,
We agree with the trial court that the Swallow Company was not entitled to extra compensation for removing the grillage underneath the floor of the old building. The contract expressly required that the Swallow Company remove “ column footings.” The grillage constituted “ column footings ” and the Swallow Company was sufficiently advised of its existence by the employment of the
Although the Levering and Garrigues Company contracted to begin the installation of steel grillage on December 9, 1915, it did not in fact begin until January 13, 1916. It completed the steel work within about eight weeks, or within about the period, after the commencement of work, which had been agreed upon. The chief delay on the part of the steel contractor, therefore, was in postponing the beginning of its installation from December ninth to January thirteenth. It is necessary to inquire whether this postponement was due to a failure on the part of the Swallow Company properly to advance necessary preparatory work or was exclusively the fault of the steel contractor. The diary of Edward W. Hyde, an employee and witness for the plaintiffs, the accuracy of whose observations is not disputed, shows the progress of the-work from December 13, 1915, onward. In the matter of digging trenches for longitudinal grillage and paving the same the first-work done by the Swallow Company was on the west side of the premises. Hyde states; under date of December thirteenth, as follows: “ At 4:30 p. m. started concreting first of foundations under steel grillage on west side near center of building.” This was five days after the steel contractor was required to begin installation. On December seventeenth Hyde says: “ There is now enough concrete base in place to receive grillage steel for four columns on the west side; but it would be impossible for any steel men to get in to set it as there is still a lot of excavating to be done and all working space is in use by teams, laborers and concrete materials and equipment.” The Swallow Company continued to concrete trench on west side until December twenty-first. On that date Hyde says: “ There is now enough concrete base in for six columns on west side, but no place for steel people to work and no steel in town to go in as far as can be ascertained.” It is immaterial that there was no steel in town if the laying of the steel was impossible. The Swallow Company continued excavating and paving on the west side. On December thirty-first Hyde says: “ West side is ready for steel grillage for the full length except for small piece at north end not yet put in, at some points, trenches are excavated slightly narrow and at two points, i. e., southwest corner and at columns 8 and 9, concrete is too high and will have to be cut down' before grillage can be set. Excavating still going on in such
The principal item of damages which the plaintiffs were allowed to recover was a sum determined by the difference between the lump sum at which A. Pasquini, to whom the plaintiffs let a contract to finish the job, agreed to complete, and the sum still unpaid to the Swallow Company upon its contract when it abandoned the work. With the allowance of this sum the defendants, except that they dispute any liability, have no quarrel. The plaintiffs also were allowed to recover sums paid to architects in the matter of superintending the Pasquini work, and sums paid for legal services in the matter of the Swallow Company default. The performance of these services was directly occasioned and made necessary by the default of the Swallow Company. We think an allowance therefor was proper. The plaintiffs were also allowed to recover a sum paid by them to procure a bond for the faithful performance of the Pasquini contract and a sum also paid by them to procure bonds for the discharge of mechanics’ liens filed in the matter of claims against the Swallow Company. We think that the payment of these sums was a necessary consequence of the Swallow Company default. In order to complete their building it was necessary for the plaintiffs to procure the discharge of the liens by the giving of bonds. While we think that the payments thus made necessarily resulted from the default, we hold that the defendant, the Massachusetts Bonding and Insurance Company, because of the terms of the policy issued by it, was not liable to reimburse the plaintiffs therefor. The bond in part provides that the obligor shall not be liable “ for the furnishing of any bond or obligation other than this instrument.” The words are unambiguous and have force to relieve the defendant named from liability for the payments in question.
As to the defendant W. Shelton Swallow Company the judgment should be affirmed; as to the defendant Massachusetts Bonding and Insurance Company the judgment should be modified by deducting from the recovery the two items of payments made by the plaintiffs for the procurement of bonds, and as modified affirmed, with costs against both defendants.
As to the defendant W. Shelton Swallow Company the judgment is unanimously affirmed; as to the defendant Massachusetts Bonding and Insurance Company the judgment is modified by deducting from the recovery the two items of payments made by the plaintiffs for the procurement of bonds, and as modified unanimously affirmed,