20 N.Y.S. 236 | N.Y. Sup. Ct. | 1892
According to the notice calling for bids and specifications, and the contract between the parties, payment for the work in question was not to be made “ until the same shall have been completed, and the cost assessed and collected from taxpayers owning property liable to taxation for the construction of said work.” In the contract between the parties it was agreed as follows: “That no payment shall be made to the party of the first
“I certify the above amount to be correct, and that the work has been performed and completed according to contract and specifications.
“John B. Borden, City Engineer.
“Syracuse, Dec. 23d, 1889.”
It is to be observed that the return contains no allegation of fraud or fraudulent practice on the part of the contractor or- the engineer, nor is there 'any finding by the court of any fraud in obtaining the certificate of the engineer. During the trial Leonard Durston, who was an assistant engineer during the construction of the sewer, testified as follows: “I saw the work during its progress every time Mr. Borden was there,—most every day. I examined it as it proceeded, and knew the construction of it. We gave the contractor the grade of the sewer by driving a peg down into the soil every 50 feet. Sometimes the pegs were driven flush with the ground, and sometimes a little above. * * * These pegs were driven under the supervision of Mr. Borden, the city engineer. We sometimes drove the pegs 25 feet apart. The figures were marked on the pegs, and given to the inspector, with written instructions to the inspector. We gave the inspector the figures in a book corresponding with the figures on the pegs. Those pegs and grade are made to control the contractor in laying the grade of the sewer. That was done in this case. The sewer was laid as deep as was requited by the figures on" "the pegs. I know it was, because we went there every day. I will say that it was within a quarter or an eighth of an inch. I would not say exactly. I know about the manholes. They were constructed according to the plans and specifications.” He also testified: “The sewer, when it was finished, had a regular, continuous grade, and it was all right. ” Also: “I went there every time Borden went there; and pegs were set along there, and the depth
Steven Putnam, a witness called by the relator, testified that he was an inspector “appointed to inspect this sewer by the city of Syracuse, and acted as such inspector during its entire construction. I directed the contractor in the construction of it, and gave him the grades. I gave Mr. Ready every grade from first to last. I gave him the grade as established by the pegs driven by Mr. Borden, and according" to the directions given to me by Mr. Borden. * * * It was built according to grade. * * * He built it just to the grade Borden gave him. ” At no point was it built above the grade given to him by the witness. He also testified: “All the pegs were set by the engineer, and he made the marks upon the pegs.” “The grade was given by Mr. Borden upon each one of the pegs. The sewer was built—excavated —according to the figures given on the pegs. * * * Whenever the contractor built the sewer above the grade as given to me by the engineer, I made him take it up and rebuild it on the grade. * * * Ready always put the grade of the sewer where I told him to put it. He followed my directions at all times.” Jerry Reilly was called as a witness for the relator, and gave evidence strongly tending to support the statements made by the inspector. The relator testified that the engineer “drove those pegs. He marked the depth I should go. Told me to go and build it according to them pegs. * * * As the work progressed, he continued to give me pegs. I constructed and built the sewer on the grade given on the pegs in every instance.” “I did it according to the measurements given by the engineer.” Other evidence was given tending to show that the sewer was constructed, in respect to its location and grade, by the relator, under the supervision of, and in accordance with the direction of, the city, through its inspector and its engineer; and evidence was given tending to show that the city had knowledge of the location and grade of the sewer before it accepted the same, and took possession of it, and appropriated it to its use, and before it initiated the proceedings to assess the parties liable to pay for its construction; while, on the other hand, there was some evidence given tending to show that the sewer was not in all respects in accordance with the contract and specifications; that there were some defects and imperfections found therein by actual measurements taken in August, 1890.
When Dillon v. City of Syracuse, (Sup.) 9 N. Y. Supp. 98, was before us, a similar contract was under consideration. In the course of the opinion in that case we had occasion to say; “The parties had a right to agree to be bound by the return of the engineer. Such a provision is obligatory. President, etc., v. Pennsylvania Coal Co., 50 N. Y. 264, and cases cited. By a fair construction of the contract in question, it must,' I think, be held that the return of the engineer was conclusive on the contractors as to the material furnished or work done. * * * It is quite apparent that nothing was to be left open for litigation under the contract, and that the return or final account of the engineer was to include and represent and adjust all the claims of the contractors. . This was to be verified and presented to the common council. They were to review, and, if satisfactory, approve; and thereupon the contractors ‘ shall be entitled to receive the amount due on said final account in full settlement of this contract.”’ Since our decision the court of appeals have decided Brady v. Mayor, 30 N. E. Rep. 757, which approves of the principles contained in our decision in the Dillon Case. In the Brady Case, “the contract required the entire work to be com
The relator asks to have the defendants continue to discharge their ministerial duties so that the relator may receive the moneys due to him in virtue of his contract with the city under the statute relating thereto- The foregoing views, if adopted, lead to a n,cw trial. Judgment and order reversed, and new trial ordered, with costs to abide the event. All concur.