102 A.D. 548 | N.Y. App. Div. | 1905
The plaintiff has been paid in full according to the contract. The object of this action is the recovery of damages for alleged breaches of the contract. The learned counsel for the city contends at the outset that the plaintiff has mistaken his remedy, and that the city is not liable inasmuch as the work was performed under a special act of the Legislature by which the city acted, so far as it acted at all, as the agent of the State. The special act is chapter 556 of the Laws of 1897.
Section 1 of the act recites that the reservoir site has been added to Bryant park, and it authorizes the department of public parks to remove the reservoir and to erect a library building upon the site, “ in accordance with plans to be made and prepared by the trustees of the New York Public Library, Astor, Lenox and Tilden foundations, and to be approved by the board of estimate and apportion
In the view we take of the case it is unnecessary to decide whether this is, strictly speaking, a city contract upon which the city may be held liable in damages for a mistake on the part of any of the individuals, officers or agents connected with preparing the plan or specifications or the supervision of the work; but the fact that the work was required to be done according to a plan prepared by the trustees of the consolidated libraries is significant, and has a material bearing upon the points upon which it is sought to predicate liability of the city.' It may be that the plaintiff was misled by this plan and that he has sustained damages in consequence thereof. It must be borne in mind, however, that the law requiring the letting of contracts for public improvements to the lowest responsible bidder may be readily evaded if contractors are to be permitted, without seeking a rescission of them, to obtain the fruits of the contracts by performance, and then secure extra compensation upon some theory of mistake such as is presented concerning the plan in the case at bar. The contractor in the circumstances was scarcely justified in relying upon the plan for quantities. There was no representation that it was made from an actual survey and in fact-
We are also of opinion that there can be no recovery for the expense of pumping. ' The contractor bases his claim in this regard upon the fact that there is no provision in the specifications requiring him to do any pumping and that there is a provision in the specifications for contract No. 2 requiring the contractor for that work to do the necessary pumping. The pumping was incident to the work. I do not understand that the city was interested in the question of pumping so far as the same was performed by the plaintiff. The evidence indicates that it was for his own convenience in the performance of the work which he undertook. The other contract had not been let, and of course he was not entitled to rely upon
On the 26th of March, 1901, a contract known as contract Yo. 2 was let for other work incident to the construction of the new library. Some of the work which the plaintiff was required to do could not be performed until certain work was performed by the contractor with whom contract Yo. 2 was made. The only evidence of damages caused by delay was the evidence tending to show the extra cost on account of the delay caused by the obstruction of the Forty-second street exit and at the dump; and this evidence was confined to the period from the 23d day of April to the 13th day of September, 1901, all of which was after the letting of the second contract. For delay caused by the work thereunder by the express terms of the specifications the city was relieved from liability. If any of these, damages were caused by the delay in furnishing working plans, as distinguished from the delay caused by the second contract, they have not been separated by tlie' evidence. Even if the city would be liable for such damages for delay in furnishing the working plans, which is somewhat doubtful on the question of tlieir being sufficiently proximate, and also in view of the provision of the specifications requiring the contractor to assume responsibility for all unforeseen difficulties encountered (See Mairs v. Mayor, 52 App. Div. 343 ; affd., 166 N. Y. 618; also Horgan v. Mayor, supra), no recovery can be had therefor owing to the failure to make specific proof.
It follows, therefore, that the plaintiff failed to establish a cause
Van Brunt, P. J., Patterson, O’Brien' and Hatch, JJ., concurred.
Exceptions overruled, with costs, and judgment ordered dismissing complaint, with costs.