257 A.D. 43 | N.Y. App. Div. | 1939
C. H. Earle, Inc., in August, 1928, contracted with the State of New York to construct about one and a half miles of bituminous macadam and one mile of reinforced concrete pavement, together with two bridges, all being a part of the Jones Beach Causeway on Long Island. The work continued until about July 25, 1929, when a petitioil in involuntary bankruptcy was filed against the corporation and the State suspended operations
Errors are urged concerning the following items.
Claimant asks $32,516.73, unpaid installment of moneys assigned before bankruptcy. A subcontractor obtained a judgment for this amount against the State, which has been paid and deducted from the balance due the claimant. The contractor, on May 17, 1929, assigned to a subcontractor moneys due and to become due under the contract, to be paid from the three succeeding estimates made by the State. Four estimates and payments were made after the assignment and before the bankruptcy, but only the first two installments were paid to the assignee. While the assignment recited that the three succeeding payments from the State would “ become due on or about ” respectively, June 1, July 1 and August 1, 1929, the four payments after the assignment were made by the State respectively on May 22 (from which the first installment under the assignment was paid), June 7, June 19 and the last July 9 (from which the second installment was paid). The trustee of the bankrupt contractor argues that the last installment not having been paid at the time of the bankruptcy, the subcontractor was a general creditor for that amount, and should not have been paid in full, being only entitled to the same percentage which other general creditors received, and that the State should pay the amount to the trustee for the benefit of all the creditors. With this we do not agree, but rather are in accord with the Court of Claims. General creditors through bankruptcy obtain liens comparable with those of judgment creditors with executions issued. An assignee of the money due or to become due under a contract for a public improvement has priority over all lienors whose claims are subsequently filed. (McCorkle v. Herrman, 117 N. Y. 297; Bates v. Salt Springs National Bank, 157 id. 322: Riverside Contracting Co. v. City of New York, 218 id. 596; Anderson v. Hayes Construction Co., 243 id. 140; Arrow Iron Works, Inc., v. Greene, 260 id. 330; Scarsdale Nat. B. & T. Co. v. U. S. F. & G. Co., 264 id. 159.) Under the Riverside case (supra) the assignee became the owner of the assigned moneys, which were not subject to claims of general creditors through bankruptcy or otherwise.
Claim for excavating 71,233 cubic yards of earth disallowed by the Court of Claims. The plans required the pavement to be laid on an embankment about ten feet high, the minimum width at the bottom to be eighty feet, the top seventy feet,
Claim for $4,932, additional compensation for the excavation and removal of 1,233 cubic yards of material from the bottom of cofferdams built in connection with the construction of the piers to support the bascule span of bridge No. 3, shown in many photo
Claim for $35,000, increased cost for ashlar masonry over cost of contract requirement for rubble masonry in the bascule towers of bridge No. 3. This claim arises because State inspectors required the contractor to face the bascule towers, foundations and sills with ashlar, while the contract provided for rubble in part, and further, because when the State took over the contract, it continued to use the higher cost type. The claimant had built the foundations and sills along the entire length of the pier and four to six feet of the towers which, when completed, would have been something over forty feet above the water level. The State finished the construction of the towers and charged the cost against the balance due the contractor. All of the masonry installed was ashlar. The type is discernible from the photographs. The contract provided concerning that type of masonry “ stones shall be accurately cut to shape and dimensions. Within thirty days after the awarding of the contract the contractor shall prepare and submit to the engineer for approval completed details of the ashlar which he proposes to use. Outside surfaces shall be rock faced with projections not exceeding The contract required that the outside of these piers should be “ faced with stone masonry. This does not include the front curtain walls extending from elevation +4 to elevation + 18 which are reinforced concrete. Quoins (exterior angles), voussoirs (the tapering or wedge-shaped pieces of stone used in constructing the arches), tops and sides of door and window openings, window sills, and water table courses shall be ashlar. Other masonry shall be rubble.” The most favorable evidence from the standpoint of the State is that under the contract and plans the four bascule towers would require eight cubic yards of ashlar masonry in the foundations, sills and water tables (including the first course on top of the piers), and thirty-two cubic yards of ashlar masonry in the superstructure, and that there, would be
Claim for $1,500 for driving and removing two test piles in connection with bridge No. 4. From the evidence adduced, I am unable to find liability on the part of the State.
Claim for $868.56 for concrete used in the construction of driving heads placed on the tops of concrete sheet piles during the driving process. These were built after conversations between representatives of the State and employees of the claimant, in which, the State’s witnesses say, claimant agreed to pay for these appurtenances and not to ask reimbursement from the State. The Court of Claims has accepted that version, and the finding is not against the weight of the evidence. It should be affirmed.
Sixty-six dollars and eighty-seven cents is asked for reconstructing forms for the concrete tops of piles of that material which had been driven. The evidence sustains the finding of the Court of Claims that some of these forms were out of alignment because of displacement of the piles owing to the failure of the contractor properly to brace and guy them directly after they were driven. The item should be disallowed.
Claim for $937.08, moneys expended by the contractor in the alignment of piles. The contractor asserts liability because of failure by State surveyors to give proper locations. The State asserts that the contractor was under an obligation to drive the piles as indicated on the plans and further, that the contractor moored some of his floating equipment to the piles already driven before they had been guyed and stay-lathed, with the result that the piles were moved through this careless act of the contractor. There is evidence to sustain each theory. I am not prepared to say that the decision of the Court of Claims is error, and favor an affirmance.
Claim for $265.31, demurrage on scows which had been loaded with stones or rip-rap to be placed around crib work or for fills
Claim for $31,994.51. This is the cost of 592,491 pounds of reinforcing rods and steel at five and a fourth cents a pound, which were used in the building of the pre-cast (not in forms located at the point of use) concrete piles. The bid on piles of this character is contained in the proposal made by the contractor which forms a part of the contract. The State was to pay eight dollars and fifty cents a linear foot for twenty-four-inch piles and six dollars a linear foot for eighteen-inch piles. The specifications provided “ payment for * * * pre-cast concrete piles shall include the cost of furnishing all materials (except Portland cement), equipment, labor and other items necessary for casting, curing and driving the piles as ordered.” This steel was a component part of the piles and its cost was included in the proposals made by the contractor. The claim should be disallowed.
Claim for $889.92, for additional metal reinforcing bars in the beams, decks and floors of bridges 3 and 4. Under the plans and specifications, these bars were to be placed four inches apart, and the surface of each bar to have a prescribed area. Those first placed by the contractor did not have the required area. An additional number of bars was required to compensate for the lack in area of those placed four inches apart. The claim should be disallowed.
Judgment should be given in accordance with the foregoing.
Crapser, Bliss and Heffernan, JJ., concur.
The judgment of $1,192.50 awarded by the Court of Claims on September 27, 1935, together with interest of $391.14 to that date, should be increased, under the law and facts, by $9,783.47, with interest on $4,932 thereon from August 1, 1929, and upon $4,851.47 from January 21, 1931, and as so modified, the judgment should be affirmed, with costs to the appellant.
The court reverses the following findings contained in the decision made by the Court of Claims: Nos. 75, 76-a, 81, 82, 83, 84, 85,
Judgment modified, as above set forth, and as so modified affirmed, with costs to the appellant.