157 N.Y.S. 127 | N.Y. App. Div. | 1916
The action was brought by a firm of .architects who were employed by the president of the borough of Brooklyn to prepare plans and specifications for a new court house and municipal building in said borough. The contract provides, among other things: “(2) * * * If the said prehminary drawings, specifications and estimate are not satisfactory to and approved by the President, then the architect shall and will revise and correct the same so as to conform to the suggestions, criticisms and requirements of the President, and so that the estimated cost, including architect’s fees and the cost of surveys and inspection shall be well within the total appropriation. (3) The City hereby retains and employs the architects to perform the aforesaid services and in consideration of his [their] performing them the City hereby agrees to and with the said architects to pay to them upon the completion and approval by the Borough President of the drawings and specifications called for by or in clause two (2) hereof the sum of ten thousand dollars ($10,000).”
The plans and specifications and estimate of cost of the building were made and approved by the president of the borough and the municipal art commission. The estimated cost of the building was $3,300,000. The first cause of action upon which the plaintiff has secured judgment, and from which the city appeals, was for the $10,000 under the agreement. Prior to making the contract the only appropriation that had been made was for $500,000 “ to provide means for the erection of a new Municipal Building for the Borough of Brooklyn.” The appellant argues that the estimated cost based on the plans and specifications prepared, instead of being well within the total appropriation, exceeded it by $2,800,000, and that by reason thereof the plaintiff failed to bring himself within the terms of his employment and cannot recover.
We must assume that the words of the contract express the intention of the parties and when they state as a hmitation upon the estimated cost that it shall be within an appropriation they refer to an existing appropriation, and as there was
It has been suggested that the clause limiting the cost should be construed to apply to the agreement of the architects to revise the plans and specifications to meet the requirements of the borough president. And he having approved the plans and not required them to be so modified, the architects are entitled to the fee. The limitation was binding not alone on the architects, but upon the borough president. He had no power to waive or change the requirement that the cost should be within the appropriation. (Bernstein v. City of New York, No. 2, supra, 545.) It is argued that a public building, for the purpose that this was to be used, could not have been built for the sum appropriated, and, therefore, the parties were justified in believing that further sums would be appropriated. The difficulty with this argument is that we are required to prophesy the future action of the board of estimate or to exclude entirely the words referring to the appropriation. The contract may have been a foolish one for the parties to have made. We, however, are not required to make another one for them, but to interpret the contract they have made according to the language used by them. The judgment as to the first cause of action should be reversed, with costs. Judgment was given for the defendant on the second cause of action, and the plaintiffs appeal from that portion of the judgment.
The second cause of action was predicated upon an agreement made by the borough president with the plaintiffs to pay them an amount equal to one and one-fourth per cent of the total estimated cost. Although the complaint alleges that this contract was reduced to writing and submitted to the corporation counsel for approval, it does not allege that it was approved or signed. The justice dismissed this cause of action, however,
I find no error in the action of the court in dismissing this cause of action.
Both sides moved for the direction of a verdict. The part of the judgment from which the defendant appeals should he reversed, with costs. The part of the judgment from which the plaintiffs appeal is affirmed, with costs, and judgment directed for the defendant dismissing the complaint, with costs.
Clarke, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
On defendant’s appeal, judgment reversed, with costs; on plaintiffs’ appeal, judgment affirmed, with costs, and judgr ment ordered for defendant dismissing complaint, with costs. Order to he settled on notice.
