145 N.Y.S. 577 | N.Y. App. Div. | 1914
The plaintiff sues upon a contract made with the city of New York for the building of a sewer or sewers in the borough of Richmond in said city. The contract contemplated the laying of sewers of different sizes and kinds. The work was completed and accepted by the city and a final estimate made. The complaint embraces four claims: First, for the construction of a sub-drain; second, for constructing a barrel stave sewer; third, for the cost of laying a concrete foundation and making the necessary excavations therefor; and, fourth, for the repayment of a deposit made to cover the cost of repaving.
The first claim was abandoned on the trial. For the second, a verdict was directed in plaintiff’s favor with the acquiescence of defendant. As to the fourth, it was conceded that the sum deposited had been actually expended by the city in replacing pavements displaced in the progress of the work. This claim, therefore, was rightly dismissed. This brings us to the consideration of the third claim.
One of the provisions of the contract is as follows: “62. In the construction of the sewers and appurtenances * * * where found necessary, concrete, together with the necessary foundation timber, shall be furnished and placed by the contractor in the manner and quantity and where required by the engineer and shall be paid for at the prices bid.” In the schedulé of prices are the following items: “22. For concrete, in place, per cubic yard, the sum of ten dollars.” “24. For additional excavation, per cubic yard, the sum of one and 60/100 dollars.”
The plaintiff claims to have done under the engineer’s orders a considerable amount of concrete work by way of foundations, and also as a necessary adjunct considerable additional excavating, for none of which was any allowance made in the final
The judgment must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Judgment reversed, new trial ordered, costs to appéllant to abide event. Order to be settled on notice.