201 A.D. 33 | N.Y. App. Div. | 1922
An opinion was written by a justice at Special Term, denying a motion for a prehminary injunction. Later on issues of law raised by the plaintiffs’ demurrer to two separate defenses contained in the amended answer were tried, and the justice at Special Term, following the opinion of the other justice, overruled the demurrer to the defenses, but found the complaint insufficient. From the interlocutory judgment then entered an appeal was taken to this court. Mr. Justice Dowling, writing for the court, said: “ I am of opinion that the complaint sets forth a good cause of action. Under its allegations the provisions of the contract referring to the
In the instant case the contractor expressly undertook to move, alter, readjust or rebuild pneumatic tubes and mail tubes and to do all such additional and incidental work as might be necessary for the reconstruction and restoration of all surface, subsurface and overhead structures which might have been directly or indirectly affected, disturbed or injured by the contractor in the progress of the work of construction, to as useful, safe, durable and good condition as existed before the construction work was begun. All such work of every description “is a part of the work which is included in this contract and which the contractor agrees to perform under the terms of this contract.”
It is well settled that contractors with a State or municipality in a public contract, “ who assume, for a consideration received from the sovereign power, by covenant express or implied, to do certain things, are liable in case of neglect to perform such covenant, to a private action at the suit of the party injured by such neglect, and such contract inures to the benefit of the individual who is interested in its performance.” (Little v. Banks, 85 N. Y. 258, 263.) And this is true, although the State or municipality might not be liable to the private individual. (Markey v. County of Queens, 154 N. Y. 675, 684.) The obligation which does not rest on the assumption of a legal obligation is based on a moral one, which is enforcible in equity. The cases on this subject are collated in Seaver v. Ransom (224 N. Y. 233, 237, 238).
The law of this case was settled in our former opinion, which should have been followed by the justice at Special Term.
Clarke, P. J., Laughlin, Dowling and Merrell, JJ,, concur.
Judgment reversed, with costs, and judgment ordered for plaintiffs, with costs. Settle order on notice.