15 N.Y.S. 520 | New York Circuit Court | 1891
The different causes of action set up in the complaint may be divided into two general classes: First, those based upon the obligation of the defendants under the contract made by the aqueduct commissioners, in the name of the defendants, under the authority conferred upon them by chapter 409 of the Laws of 1883, to build section 6 of the aqueduct, whereby plaintiffs seek to recover the amount due to them for work performed, and for which they are tobe paid by the terms of the contract; and, second, those in which the city is sought to be held liable for the acts or failure to act of the chief engineer or his subordinates, where the contract contains no provision requiring the defendants to pay for the damages caused or expenses incurred thereby. In order to recover for the amount due under the contract, the obligation is upon the plaintiffs to show that they have substantially performed the contract upon their part. So far as the causes of action which seek to hold defendants liable for the acts of the engineers appointed by the aqueduct commission, such causes of action must depend upon some relation that exists between the defendants and such engineers, or some liability upon the part of the city for the act of the person whose negligence caused the injury. The contract in question was prepared and submitted to
Chapter 409 of the Laws of 1883 is entitled “An act to provide for new reservoirs, dams, and a new aqueduct, with the appurtenances thereto, for the purpose of supplying the city of New York with an increased supply of pure and wholesome water.” By the first section the mayor, the comptroller, and the commissioner of public works of the city of New York, and three persons named, are authorized, empowered, and directed to carry out the provisions of the act in the manner thereinafter provided, “for the purpose of supplying said city with an increased supply of pure and wholesome water, and they are there designated ‘Aqueduct Commissioners.’” The act then provides for the preparation of plans, maps, specifications, estimates,' and particulars relating thereto, for the construction of the new aqueduct, and for the construction of one or more dams and reservoirs to retain such water, and it authorizes proceedings to condemn such land as shall be necessary to build the aqueduct. Section 25 provides for the preparation of forms of contracts and specifications for the doing of the. work and furnishing of materials required to be done and furnished by the plans. The commissioner of public works is to prepare and submit to the aqueduct commissioners and to the counsel for the corporation the forms of contract and specifications. Such forms of contracts are to be either approved or rejected by the aqueduct commissioners, and must be approved as to form by the counsel to. the cor
It has been settled by repeated adjudications that where the amount due to the contractor is to be determined by the certificate of an engineer or other third party, the production of a certificate is a condition precedent to a right to receive the amount to be paid to the contractor under the contract, or it must appear that the person designated has neglected or refused to give a certificate within a reasonable time after-the contract has been completed and an application has been "made therefor; that when a certificate is given it is conclusive upon the parties, and, in the absence of proof of corruption, bad faith, or misconduct on the part of the person designated, or palpable mistake appearing on the face of the certificate, neither party can be allowed to prove that such designated person decided wrongly as to the law or facts. Bryon v. Low, 109 N. Y. 291, 16 N. E. Rep. 45; Sweet v. Morrison, 116 N. Y. 32, 22 N. E. Rep. 276; Phelan v. Mayor, etc., 119 N. Y. 86, 23 N. E. Rep. 175; Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 266, and cases cited.
The cause of action to recover for money to be paid under the contract can be sustained only upon showing that after the completion of the contract plaintiffs had demanded of the engineer, who, under the contract was to make the final certificate, that he make such a certificate, and that he had refused or unreasonably neglected to comply with that demand, or that fraudulently, corruptly, or in bad faith he made a false certificate, so that the court would be justified in setting aside the certificate as not binding upon the plaintiffs. By the contract sued on the engineer was required to certify to the aqueduct commissioners that the plaintiffs had completely performed the contract, and in his certificate was to state from actual measurement- the whole amount of the work done by the plaintiffs, and the value of such work under-and in accordance with the terms of the contract. The engineer was not to certify to the plaintiffs, but to the aqueduct commissioners, and, if he so certified to them before the commencement of this action, it is clear that the amount to which the plaintiffs were entitled was the amount which, by such certificate, should appear to be due over and above the payments theretofore made to the plaintiffs; and as it appears that the chief engineer, acting under this provision of the contract, did, on the 18th of June, 1889, certify to the commissioners the amount due to the plaintiffs under the contract in this case, that certificate is binding upon plaintiffs unless they show fraud, corruption, or bad faith. Assuming that there is evidence to sustain a finding by the jury that prior to the 18th day of June, 1890, there had been an unreasonable delay in making the certificate, such delay would not nullify a certificate actually made before an action was commenced to recover for the work done under the contract, nor entitle the contractor to proceed as though no certificate had actually been made. It is only where a party to a contract is entitled, because of his substantial performance of the contract, to receive the stipulated compensation for such performance, and commences his action to recover such
The engineer did, by his certificate of June 18th, certify to the whole amount of work done by the plaintiffs, and although the provision as to the completion of the work was not in the exact form provided for by the contract, it was accepted by the commissioners as a substantial compliance therewith, and they subsequently accepted the work as substantially completed according to the terms of the contract. 1 do not think that the plaintiffs can complain as to the form of the certificate, it having been accepted by the aqueduct commissioners and the defendants as a certificate required by the contract, and I think this certificate, as made, is binding upon the plaintiffs, unless it appears that there was fraud, corruption, or bad faith upon the part of the engineer, and the question is now presented as to whether there is any evidence that would justify the submission of the question of the good faith of the engineer .to the jury. There can be no doubt but that a plain and gross error in the award of such a character that would justify an inference that the engineer intended to allow to the contractor less than he was clearly entitled to would be some evidence of such fraud or bad faith, but the error must be very plain and palpable. Perkins v. Giles, 50 N. Y. 232. The principal objection that plaintiffs have made to this certificate is as to the amount of rock excavation allowed plaintiffs, and that question depends upon whether or not the engineer should have allowed for the excavation outside of the space occupied by the brick masonry that forms the lining of the tunnel. To justify the submission of this question to the jury it is not enough to show that the engineer has made an honest mistake in the construction that he has given to the contract where a doubtful question was presented to him for his determination; for, by the contract, where such a question arose the parties agreed that the decision of the engineer should be controlling, and, having given to this contract careful consideration, I am satisfied that the construction given to the contract by the engineer was not only a reasonable construction, but was, under the circumstances, the true construction of the contract. By clause 17 of the specifications, made a part of this contract, it is provided that the form and area of the cross-section of the tunnel excavation at any place shall be such as the engineer may determine for that place, and by clause 21 it is provided that the tunnel at any place is to be excavated to the line of the cross-section determined by the engineer for that place. These two provisions, taken together, indicate the plain intention that the engineer was to determine for each particular portion of the tunnel the extent of the excavation that the proper construction of the aqueduct required. As the work progressed the engineer was to determine how much of an excavation was required for the construction of the aqueduct at each particular place, and the area depended upon the nature of the substance in which the aqueduct was to be built, and when, at any par
The evidence shows that the only line given by the engineer to the eon--tractors as the work progressed through the rock excavation was the line that included the outside of the brick lining of the aqueduct, and the evidence is "that when that line was designated the contractor was informed that he was "to excavate up to that line; that his drill-holes would -be placed within that line; and that there must be no rock within the area thus designated. And it seems to me clear that under" the provisions of the contract the line thus given to the plaintiffs by the engineer was the line provided by section 21 of the specifications as the line to which the contractor was bound to excavate; ■and for the excavation inside of that line he was to be paid. The fact that by the method adopted by him for excavating he necessarily removed some of the rock outside of the line so given to him was contemplated by the parties at the time the contract was made, and provision was made by the clause be.fore quoted that for any excavation outside this cross-section, as determined by the engineer, the contractor was not to be paid. That provision would be ■without meaning if the cross-section mentioned was to be not only the space within the line given to which the contractor was required to excavate, but was also to include the space beyond such lines, which the ordinary methods ■adopted for such work would actually excavate. When the engineer was required to give his final certificate, this question as to the amount of excavation for which the plaintiffs were entitled to be paid was presented to him for his determination. Under the contract, by clause 5, it was expressly provided that the action of the engineer, by which the plaintiffs were bound and •concluded, according to the terms of the contract, should be that evidenced by his final certificate, all prior partial payments being made merely upon estimates subject to correction of such final certificate. It was therefore at the time of making the final certificate that these questions had to be met and finally determined, and the prior decision of the engineer as to the amount of the excavation for which the plaintiffs were entitled to be paid was subject to correction at this time. There was nothing in any of the decisions of the •engineer prior to the time of making the final certificate that could possibly be binding upon the city, or conclude the engineer from adopting, at the time he made the final certificate, a construction of the contract that at that time ¡•seemed to him to be a proper one. The letter of February 7, 1887, was in .form of a report to the aqueduct commissioners, and simply indicates an opinion as to the proper construction of the contract, and while it might be adopted ■as an expression of the engineer’s views at that time, it could be nothing more
There are other claims by the plaintiffs that were not included in the final certificate, but in each case the question as to whether or not the contractor was entitled to be paid for the work was to be determined by the engineer in his final certificate, and I think there was in all cases a doubtful question for him to decide, and that there is no evidence to justify a finding that his decision was improperly influenced. I can see no evidence, therefore, that would justify a finding of corruption, bad faith, or misconduct on the part of the engineer, and the plaintiffs are therefore concluded by the engineer’s certificate, and are entitled to receive only the amount certified to by him as due. As to all claims against the city arising out of the misconduct or mistakes or errors of the engineer in charge of the work, or on account of or by reason of damage sustained because of orders given to them by the commissioners or the engineer, there can be no recovery, because, by the express provisions of the act, the liability of the city of New York is limited to the amount required to be paid by the contract. To impose any other liability upon the city would be an express repeal of the statute under which the contract was made.
As I have before stated, the limitations contained in the statute under which this contract was made and the work done bound the persons who made the contract for the doing of the work. The first section of that act ■designates the individuals who are to carry out its provisions, and the commissioners thus appointed are given the appointment of the necessary clerks, messengers, or employes, and it is the aqueduct commissioners, their engineers, supervisors, and inspectors who were to direct, supervise, and inspect the carrying out of the performance of the contract. It seems to me clear that neither the aqueduct commissioners, nor the engineers or inspectors, were servants of the defendant so that the defendant was liable for their negligence. In the case of Maximilian v. Mayor, etc., 62 N. Y. 163, the responsibility of a municipal corporation for the negligence of public officers is discussed, and it seems to me that the liability of the defendant for the acts of these officers is determined by the principle established in that case. Folger, J., in delivering the opinion of the court, says: “This rule of respondeat superior is based upon the right Which the employer has to select his servants, to discharge them, if not competent or skillful or well behaved, and to direct and control them while in his employ. The rule has no application to a case in which this power does not exist. * * * The difficulty is not here. It is in determining, in a particular case, whether the negligent employe is the servant of the municipality, for it is not everyone who has in charge personal' property owned by a municipality, and sets about some lawful act with it within the municipal bounds, that is its servant, nor even if his appointment comes intermediately or immediately from the municipality itself. If the act
Í have thus come to the conclusion that upon neither of the causes óf action alleged in the complaint can the plaintiffs recover more than the amount remaining due according to the certificate of the engineer, for the amount to be paid under the contract, and the amount certified to by the engineer, and that amount only, is due. As to all other claims whereby the city is sought to be held for acts or directions of the aqueduct commissioners, or defendants’ agents or servants, the city is not responsible. The motion of the defendants that a verdict be directed for the plaintiffs for the amount remaining unpaid, according to the certificate of the engineer, is therefore granted.