16 N.Y.S. 206 | City of New York Municipal Court | 1891
This action was based on a written contract, signed by plaintiffs and, defendant, by which plaintiffs agreed to regulate and grade certain real property belonging to defendant, by excavating where the same was above the fixed grades, and filling in where the same was below such grades, for an agreed price of 25 cents per cubic yard of earth excavated and removed, $1.13 per cubic yard for rock so excavated and removed, and for building a stone culvert, 50 cents for each lineal yard so built." This contract contains the following provisions: “The party of the first part [defendant] reserves the right to determine when and where the rock found on said property shall be excavated, if at all,” and “the party of the first part reserves the right to decide, after the rock has been uncovered, whether he will have the same removed or not, beyond such amount of rock as may be necessary to blast to build the drain or culvert.” All the earth was excavated and removed, and the culvert completed under the contract, and for all of which the plaintiffs were paid in full. But after about 2,000 tons of rock had been uncovered the defendant decided that he would not have it removed by plaintiffs, claiming that these provisions of the contract were inserted in order that he might,