New York Metal Ceiling Co. v. City of New York

117 N.Y.S. 632 | N.Y. App. Div. | 1909

Scott, J. :

Appeal from a. judgment in an action to foreclose a mechanic’s lien... The complaint was dismissed at. the close of the plaintiff’s case upon the ground that it had not completed all the work which it contracted to do. The defendant Snare & Triest Co. was general contractor with the city of New York for the erection of a ferry house at St. George, on Staten Island. The city’s specifications included two articles numbered respectively 177 and 178, the latter of which read as follows: “ The interior sheet metal work will include the lining'of the walls of the truck depot, cab stand, baggage, express, Boiler room, dynamo room, and post office spaces, and the walls of the Concourse, the walls of all rooms, lobbies, closets and toilets in the four projecting buildings to the east of the main structure, including all partition surfaces, pilasters, beams, panel stiles and other features in these buildings, and the entire walls of the platforms over the cab stand, baggage, express, post office, dynamo and boiler room spaces.” It was testified to and not denied that plaintiff did all of the work specified in article 178, with the exception of one or two walls that were omitted and in place of which other work was done. As to these omissions no point is made, respondent’s contention being that its contract with plaintiff included, as well as the work specified in article 178, the exterior wall surfaces specified in article 177. The contract between the parties consisted of a written proposal by plaintiff and its acceptance by respondent. The proposal read as follows: “This Company hereby agrees * * *• to do the following described metal ceiling work, covering, in accordance with the specifications following, those parts or portions of the building above referred to, "which may be more particularly described as follows, to wit, to do all' the stamped, crimped,and corrugated sheet metal worh consisting of ceilings, sidewalls and wainscotings where repaired, called for in plans and specifications for the new ferry house and other structures appurtenant thereto in connection with the new St. Geo. Ferry Terminal at St. Geo., S. I., Borough of Bichmond.” This proposal having been signed by plaintiff on May 24, 1906, was signed by respondent and returned to plaintiff on May twenty-sixth with a letter from respondent reading (so far as material) as follows: “We accept your estimate of May 24, 1906, to do all the interior sheet metal work called for in plans arid specifications for the new ferry house,” etc. The plaintiff’s- contention is that its proposal only covered the interior work, and we think that the reading of the proposal bears out this claim. It proposed to do “ceilings, sidewalls and wainscotings.” Ceilings and wainscoting obviously refer to interior work, and when the word'“ sidewalls ” is used in conjunction with them it should also be read as referring to work of a-similar -character, that is to say, to-interior work, to which it is certainly applicable. It is true that the exterior walls are also in a sense “ sidewalls,” because they are on the sides of structures, but if such walls were intended it would be inappropriate to enumerate them between ceilings and wainscoting. Any doubt upon the subject, however, seems to be set at rest by respondent’s letter' which was delivered contemporaneously with the accepted proposal and should be read as part of the contract, and as explanatory thereof. This distinctly recognizes that the work contracted for was “ interior sheet metal work.”

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, McLaughlin and Houghton, JJ., concurred; LaughlIn, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.