Potter v. City of New York

68 N.Y.S. 1039 | N.Y. App. Div. | 1901

Hirschberg, J.:

The complaint contains three causes of action. The plaintiff recovered on the first; the second was dismissed, and the third was withdrawn upon the trial.

The first and second causes of actions are based on a written agreement made April 23, 1895, between the plaintiff and the board of .sewer commissioners of the village of Far Rockaway, Mew York, whereby the plaintiff claims to have been employed as engineer to prepare specifications and supervise the construction of a system of «ewers for that village, for the sum of ten dollars per day. The first ■cause of action is for compensation from the time plaintiff commenced work until August 5, 1897, when he alleges he was wrongfully dis■charged by the board. The second cause of action is for damages resulting from the discharge. The defendant is sued as successor in liability to the village under the terms of section 4 of “ the Greater Mew York Charter ” (Laws of 1897, chap. 378).

The power to employ was conferred by .chapter 375 of the Laws of 1889, entitled “ An Act to provide for the construction of sewers in any incorporated village of this State.” Section 2 of this act provides for the appointment of sewer commissioners. Section 3, .as amended by Laws of 1895, chapter 202, authorizes such commis«ioners before taking proceedings for the construction of sewers under the act to cause a map or plan to be made of a permanent system of sewerage for the village; “ and for that purpose the board of sewer commissioners may employ a competent engineer and such other person as said board of sewer commissioners may deem necessary, but the total expense thereof shall not .exceed two thousand dollars, and the amount of such expenses shall be included in the next annual tax levy of such village as a part of the ordinary expenditures of the village, and shall be paid by the village treasurer upon the order of the board of sewer commissioners, signed by the president and countersigned by the clerk of such board.” Other sections of the act provide for the submission of the question of the construction of the sewers to voters at a special election to be held upon the board declaring by resolution “ their intention to construct, the same; ” the advertising for proposals for the performance of the work “ either under entire contract, or in parts or in. sections, under special contracts,” as the board shall deem for the best interests of the village ; and the acquisition of land and the raising of the necesssary funds for the improvement. And by section 13 authority is conferred upon the board “ to employ a supervising engineer to superintend and inspect the construction of any sewers or works connected therewith authorized to be constructed by this act, and to pay him a compensation not exceeding ten dollars per day, and such other inspectors as may be necessary, and to pay them a compensation not to exceed two and one-half dollars per day each, which shall be included in their estimate of the expenses of the construction of the same, and shall: be paid as a portion thereof.” The contract between the plaintiff and the sewer commissioners provides that in consideration of the payment of ten dollars per day, the plaintiff agrees (1) .to make a survey of the village, taking measurements, levels, etc., both in and outside of the village, necessary to complete the work ; (2) to make a map showing locations of sewers, manholes, etc.; (3) to prepare profiles of every street, showing sewers and their depth below the surface; (4) to design changes in the map and plan of the system of sewers of such a character as. shall meet with the approval of the State Board of Health ; (5) to prepare a report setting forth the reason for the adoption of each feature of the system; (6) to recommend the best system of. sewerage, disposition and disposal, and to prepare complete plans and specifications therefor, which shall be acceptable to the State Board of Health; (7) to prepare complete specifications for the construction of the system, and “ (8) to superintend and inspect, as supervising engineer, the construction- of any sewers authorized to be constructed within a year from the date of the letting of the contract.” The board of sewer commissioners bound, itself by the contract to pay the plaintiff the sum of ten dollars per day in consideration of the performance of the' above specified, work, the plaintiff’s appointment as supervising engineer “ to date three months prior to the date hereinafter decided upon, when the bids are opened for the construction of the system of sewers.” The contract further provided that, in case it should be thereafter decided by law that “ the appointment of the supervising engineer ” could not be legally made until after the election for sewerage was carried, and if at that time the board should, for reasons not apparent at the time of signing the contract, “ appoint another engineer,” then the plaintiff’s claim for services rendered prior to the election should become a claim against thé members of the board individually, in which event the amount due the plaintiff was fixed at the sum of seven hundred and fifty dollars.

The election appears to have been carried in favor of the construction of the sewerage system in accordance with the plaintiff’s designs, plans and specifications, and. the first contract was given to R. B. Mitchell & Co. The dates respectively of the election and of the awarding of the contract do not appear. On March 15, 1897, the work was taken from that firm and carried on by the public authorities until October 28, 1897, when another contractor, Nicholas Blasi, was employed, and the work was finally completed on February 1, 1898. The plaintiff fully performed the terms of the contract, making all the surveys, maps, profiles, designs, reports, plans and specifications called for, and superintending and inspecting as supervising engineer the conduct of the work until the receipt by him on August 5, 1897, of a written notice from the board that “ his services at ($10) ten dollars per day as engineer ” were discontinued in accordance with the terms of the contract. It was admitted that from that date he notified the commissioners that he stood ready to perform his services to the completion of the work.

No question is raised as to the power of the board of sewer commissioners under the statute to make this contract with the plaintiff. The learned counsel for the respondent make no claim that the subsequent adoption of the plaintiff’s proposed sewer system by the voters, and the practical recognition of the validity of the contract by the board of sewer commissioners in the acceptance of the plaintiff’s services did not constitute a ratification of the original hiring, but the claim is made that under the terms of the contract no time was specified, and that accordingly the relations were severable at ttie pleasure of either party. This was the view taken by the learned trial justice, and the complaint was dismissed as to the second cause of action because, in the view of the court, the hiring was general and indefinite, which might be terminated by either party at any time, and “ an engagement for a definite period cannot be spelled out from the written contract.”

I cannot accord with this view. The case of Martin v. Insurance Co. (148 N. Y. 117), which is the authority for this decision, only decides that.a general or indefinite hiring does not import an employment by the year, and that although the compensation agreed upon is at an annual rate, the hiring is to be regarded as indefinite, in the absence of an agreement for a specified term. The converse of the proposition is equally true, and a. hiring inay be for a fixed and determined period, although the compensation may be agreed upon at a per diem rate. In this, case it was impossible to fix the périod of time in advance, for the sewage system proposed, or to be proposed, had not been lawfully adopted or authorized, and it was not known how long a time would be required in the accomplishment of the work. But the contract was made' so as to cover the-entire work incident to the scheme whatever might be the period of time ultimately required. In order to determine the length of the employer’s engagement to pay it is only necessary to ascertain the duration of the employee’s engagement to work. The agreement to pay is to be measured by the agreement to work. What the plaintiff agreed and bound himself to do in addition to all the preliminary work was to superintend and inspect as supervising engineer the “ construction ” of all sewers which might be lawfully authorized within one year from the letting of the contract. This engagement appears to be absolute, unqualified and unlimited. The word “ construction ’■’ as used in the contract meant the actual building, not the commencement merely, but the fulfillment and completion, and if a lump sum had been fixed as compensation, no one • would pretend that the plaintiff could lawfully elect to quit work in the middle of the job. And if he should elect under this contract to cease work while the system was in process of construction, the board might well say: “You have agreed to supervise this work without any qualification, but in its entirety; we have hired you to superintend it, because it is your design, and you are familar with all its details ; and we have agreed to pay you the maximum sum allowed by law in order to secure your services at every stage of the improvement and until the work is completed as an entire and homogeneous system.” I think the plaintiff would be compellable under the contract to supervise the construction of the sewers, as he expressly agreed to do, and that the employment is for a fixed period, not known in advance as a measure of time, but dependent upon the duration of a distinct job or piece of work, which as a job is fixed and determined by the period of time required in its fulfillment. Had the plaintiff agreed to construct the sewers at ten dollars a day, he could certainly have been held to the performance of the completed work, and the same principle applies to his agreement to supervise the construction.

This view is supported not only by the provision liquidating the plaintiff’s pay at the sum of $750 instead of at the rate of $10 per day in case of an unfavorable election, or in case of the appointment of another engineer at the time of the election, but also by another provision of the contract. The contract provides that “ if for any reason work should be suspended for a greater period than three weeks, no pay will be demanded for time in excess of said period.” It is difficult to see any good reason for the insertion of this provision if the board were only hiring the plaintiff by the day, with liberty to terminate his right to compensation at any time at will. It is evident that the contract was designed on both sides to cover the entire period of construction, the plaintiff to be paid for that period at the rate specified, excepting during temporary suspensions for the excess over three weeks each, and that, in the absence of any good ground for his dismissal from the employment, he is entitled to recover damages for the breach complained of.

The judgment, so far as appealed from, must be reversed, and a new trial had of the second cause of action.

All concurred, except Jenks, J., not sitting.

Judgment, so far as -appealed from, reversed and new trial of the second cause of action granted, costs to abide the event.