92 N.Y.S. 897 | 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, p. 832, of the Laws of 1897. It recites that the reservoir site has been added to Bryant Park, and it authorizes the department of 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 apportionment.” The act further recites that these libraries had been consolidated, and that the building was to be used as a public library and reading room by the consolidated corporation. Section 2 of the act provided that the contract, specifications, and bonds for the performance of the work and
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 under
On the 36th of March, 1901, a contract known as “Contract No. 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 No. 3 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 33d day of April to the 13th day of September, 1901, all of which was after the letting of the second contract or the work thereunder, as to which 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 the 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 óf their 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. The Mayor, 53 App. Div. 343, 65 N. Y. Supp. 160, affirmed 166 N. Y. 618, 59 N. E. 1126; 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 of action upon any of the counts, and his exceptions should be overruled, with costs, and judgment directed in favor of the defendant for a dismissal of the complaint, with costs. All concur.