10 N.Y.S. 66 | N.Y. Sup. Ct. | 1890
The action was brought to recover the amount claimed to be unpaid for regulating and grading Fort George avenue from Tenth to Eleventh avenues, and setting curb-stones and flagging sidewalks therein. The work was let by a contract executed by the commissioner of public works and James H. Sullivan on or about the 17th of August, 1886; and after it had been in part performed, the contract was assigned to the plaintiff, who completed the work. His claim • consisted of two items. The first was for money retained by the city from the contract price, amounting to the sum of $432.02, and the other was for the value or cost of the material used for filling on the avenue to bring it up to the grade adopted for the improvement. It was claimed on behalf of the defendant that it was entitled still to re
But the claim made by the plaintiff for filling furnished by him to raise the street to the grade prescribed stands upon different grounds; for, by the terms of the proposals for the contract, no material of this description was included, or required to be furnished. But the entire work, as proposals were invited for it, consisted of earth and rock to be excavated, curb-stones to be furnished and set, and flagging stones to be furnished and laid. The amount of this work and materials was included in the published proposals; but no material for filling was mentioned, nor required to be estimated, which should be obtained or supplied by the person whose proposals should be accepted for the performance of the work. The work was ordered by a resolution adopted by the aldermen on the 11th, and approved by the mayor on the 18th, of May, 1885; and this work was directed to be done under the action of the commissioner of public works; and sealed estimates for this work were invited by a notice published, as the charter required that to be done, in the early part of July, 1886. When the resolution was approved by the mayor, the earth included within the line of the avenue to be regulated and graded had not been disturbed or removed. But after that, and in the year 1885, a large part of the earth in the avenue, which was capable of being used to fill the lower portions of it up to the prescribed grade, had been taken and carried away. This was alleged to have been done through the act, default, and neglect of the defendant, its officers and agents; and the plaintiff, as the assignee of the contract afterwards entered into for the grading and improvement of the avenue, insisted that the city was responsible to him for the removal of this earth. But it appeared by the evidence that it was not sore-moved by any person acting in its employment or under its authority, or even with its knowledge, but the persons who removed it were trespassers, having no right whatever to take it, and themselves alone liable for the wrong in this manner committed. Upon these facts, therefore, no right of compensation for the earth removed within the lines of the avenue existed against the defendant.
It was further insisted on behalf of the plaintiff that he was entitled under the contract to recover the value of the earth obtained and used by himself from other localities in filling the avenue up to its requisite grade. This claim proceeded upon the ground that it was mentioned in the specifications, which were inserted in the contract, that the “street which is above the grade line is to be excavated, and such and so much of the material excavated as may be fit for the purpose, and as may be necessary, shall be filled in those parts of the street which are below the grade lines, in the manner hereinafter provided. The material excavated not so used for filling shall be removed from the street. If the amount of material excavated that is fit for filling shall not be sufficient to regulate the street, the contractor shall furnish and supply material of proper kind and quality sufficient for the purpose; but only the difference between the total quantity of filling to finish grade and line as shown in cross-section, and the total quantity of excavation to the finished grade and line as shown in cross-section, with slopes in each case as herein described, will be considered as filling to be furnished, and as such to be paid for.” And the contract itself declared that, “for any work, the price of which is not specified in this contract, the provisions herein contained in relation to work not provided for in this contract shall apply.” But no other provision appears to have been inserted in the contract relating to this sub
But if the contract, from this general language employed in the specifications, and relating to any work, the price of which was not specified in the contract, should be held to be controlling as to the intention of the agreement, the effect would still remain the same; for, by the law as it was in
It has been suggested in support of the right of the plaintiff to recover, as he did at the trial, for the filling obtained and used by him from other sources than the avenue, that this work may have been ordered to be done otherwise than by contract, by a vote of three-fourths of the members elected to the common council. But that fact cannot be assumed in his favor. It was not alleged in the complaint that such an order or resolution had been adopted; but, on the contrary, the proposals were invited, and the contract entered into, in apparent conformity to the requirements of the law, where no such resolution should be or had been adopted by the common council. And the case was tried and disposed of upon the theory that the plaintiff’s right to compensation for the filling in this manner obtained and supplied depended upon the provisions of the contract, if it could not be maintained because of the removal of the earth from the line of the avenue after the passage of the resolution, and before the notice was published by the commissioner of public works; and it is upon that theory that the plaintiff is left to maintain his right to this recovery, if it can be maintained at all. It was proved upon the trial that by the Revised Ordinances of 1880, adopted after the enactment of the law of 1873, the proposals for estimates should contain, among others, a statement of “the quantity and quality of supplies, or the nature and extent, as near as possible, of the work required.” But the proposals which were published in no manner included material to be supplied by the contractor for the filling of the avenue, beyond that which might be excavated in the performance of the work, and no estimate was made, and no contract proposed to be entered into, for supplying or paying for such filling; and, as the amount for which the plaintiff claimed, and the proof tended to establish he had furnished, exceeded the sum of $1,000, the law required that it should be included in the advertised proposals for estimates before a contract could be authorized for supplying and paying for it. And that it was not expected that the contractor furnishing estimates, and afterwards receiving a contract, under the advertised proposals, would be compensated for such filling, was entirely evident from the proposals themselves, as they were published. And that such additional filling might become necessary must have been obvious to the .contractor before he submitted his estimates, for the proof established the fact that the land included in the avenue exhibited the previous removal of the earth, amounting ip quantity, according
It was, it is true, stated in the opinion in Nelson v. Mayor, 63 N. Y. 535, that such a recovery might be maintained; but the case.ultimately was decided upon another ground. And in McDonald v. Mayor, etc., 68 N. Y. 23, this decision was reviewed; and it was then considered and held that a recovery could not be secured for work or material supplied to the city in violation of the restraints of these provisions of the charter. And the same principle was sustained in Brady v. Mayor, etc., 20 N. Y. 312, and In re Merriam, 84 N. Y. 596; and it was in no manner involved or questioned either in Poillon v. City of Brooklyn, 101 N. Y. 132, 135, 4 N. E. Rep. 191, or Reilly v. Mayor, etc., 111 N. Y. 473, 18 N. E. Rep. 623. In the last case the contractor was permitted to recover for excavating rock notwithstanding a mistake concerning the quantity to be excavated in the performance of his work, which was unknown to the officials of the city, but was understood by himself. This ease is an authority rather in favor of the defendant than of the plaintiff; for, if the city should be obliged to perform notwithstanding its mistake as to the amount or quantity of rock to be excavated, the contractor and his assignee should in this instance be equally bound by their agreement, if the proposals were made, and the contract entered into, by reason of a mistake as to the amount of earth which could be taken from the work, and made available for filling up the low parts of the avenue. The case of Mulholland v. Mayor, etc., 113 N. Y. 631, 20 N. E. Rep. 856, applied only to deviations in the performance of the work, and has no application to this controversy. Eeither has any. of the other authorities which have been cited and relied upon for the purpose of sustaining this recovery. So far as it was permitted at the trial, it was in conflict with the law whose provisions are required to be enforced against the plaintiff. Eeither he, nor the contractor who assigned the contract to him, was bound'to accept the contract without a proposal and an agreement relating to the filling. But they voluntarily did this, with the ability directly at hand to estimate and ascertain the amount of additional material, which might become necessary to bring the avenue up to its prescribed grade, beyond that which could be obtained from the land included within its limits. It is highly probable that knowledge of this fact had been acquired, as it could be, by an observation of the locality over which the work was to be done. But, whether it had or not, the law provided for but one mode, in the absence of a vote of three-fourths of the members elected to the common council, and the city could only become obligated by a compliance with or observance of that mode; and that was neither complied with nor ob