149 N.Y.S. 784 | N.Y. App. Div. | 1914
The plaintiff appeals from so much of the judgment as dismisses its first and fifth alleged causes of action, and from so much of an order as denies its motion, made at the close of the case, to set aside the directions of dismissal, and for a new trial of said causes of action; and the defendant appeals from so much of the judgment as sustains the plaintiff’s second, third, fourth and seventh alleged causes of action and from that part of the order which denies its motion to set aside the general and special verdicts as to such causes of action.
The action is brought by an assignee of a contractor for the construction of certain sewers. Work was commenced thereon about the 20th of August, 1905, and proceeded until some time in December, when the contractor was informed that his work was defective, unsatisfactory and would not be accepted; that he would have to take it all up and do it over again. A pay
There is no evidence indicating that the city ever raised any question about the further work to be done to finish the contract work. Its contention was as- to the work that had been done. If the contention of the contractor that the failure to pay the money he was entitled to be paid constituted a breach of the contract by the defendant be conceded, he had two remedies: First, he might stop work, repudiate the contract
The only remaining element to be considered under the first alleged cause of action is the plaintiff’s contention that the defendant arrested the work by notice to the contractor that his work was not in accordance with the contract, was unsatisfactory and would not be paid for. The evidence establishes that if the borough president suspended the work it was under the provisions of clause “K” of the contract, because of a claim of improper and defective materials used and because of a borough-wide investigation of cement pipe sewers, which was being conducted in good faith by the municipal authorities. There is no evidence justifying the presumption that the city abandoned the contract, and its efforts to induce Murray to proceed with the work shows the contrary to have been the fact. The contract was prepared to meet just such an emergency, and by its terms relieved the city from liability to the contractor except for a proper extension of the time specified for completion, and when parties to a contract specifically provide for the consequences of its breach the remedy thus provided is exclusive. (Richard v. Clark, 43 Misc. Rep. 622, 627; Norcross v. Wills, 198 N. Y. 336, 341; Fortunato v. Patten, 147 id. 277; Read v. Fox, 119 App. Div. 366.) It is contended that under the authority of Ryan v. City of New York (159 App. Div. 105) the acceptance of a progress payment, which is a percentage of the amount earned, is not an acceptance of 'the principal which precludes the recovery of interest, but Mr. Justice Hotchkiss, writing for the court in that case, based his decision that interest was recoverable upon the ground that “ The receipts given
The plaintiff recovered $2,279.35 under its second cause of action as damages for the additional expense of its assignor in constructing the sewer, by having to remove materials which were placed upon the route after the contract was entered into by the city or its contractors upon other work. From this portion of the judgment the city appeals, basing its contention on clause “L ” of the contract, which provides: “ Should postponement or delay be occasioned by the precedence of paving or other contracts, which may be either let or executed before or after the execution of this contract, on the line of the work, no claim for damages therefor shall be made by or allowed to the Contractor; nor shall any claim for damages be made or allowed in consequence of the street or the adjoining sewers not being in the condition contemplated by the parties at the time of making the contract, except that if the Contractor shall be delayed in performance of his work by reason of the street or the adjoining sewers not being in such condition, or by reason of the work or any part thereof being suspended as above provided, such allowance of time as the President shall deem reasonable shall be made by the President in the manner hereinafter provided for.” This clause is limited to delay and does not cover removal of material by the contractor or the consequent increased cost to him in the construction of the sewer. The plaintiff made no claim for the removal of the material. Its contention was that the work of its assignor under the contract, and his expenses, were largely increased by the conditions which prevailed by reason of the accumulation
The judgment and order should be affirmed, without costs to either party in this court.
Jenks, P. J., Carr and Putnam, JJ., concurred; Burr, J., not voting.
Judgment and order affirmed, without costs to either party in this court.