143 N.Y.S. 974 | N.Y. App. Div. | 1913
The firm of which plaintiff is the survivor was the contractor for the construction of the Manhattan anchorage of the Williamsburg bridge. This anchorage was authorized by chapter 789 of the Laws of 1895, and was, in pursuance of that act, contracted for in the joint names of the mayor, etc., of New York and the city of Brooklyn on October 5, 1897. This was prior to the date when the Greater New York charter (Laws of 1897, chap. 378, as amd.) became operative. The work of building the bridge embraced contracts with other concerns for cables and the several towers over which they were strung. The work under the plaintiff’s contract was begun in October, 1897, and was completely finished about July or August, 1903. The contract provided for specific prices to be paid for piles, according to length, and “the sum of * * * $716,770 for the remainder of the whole work complete in place.” The masonry work included granite base or underpinning, granite face stones, ashlar shaft and moulded granite coping, with undressed limestone in the interior and faced limestone for certain exterior parts. Monthly or progress payments of the usual character were to be made by the city as the work progressed, and final payment after completion.
Item 14. Damages because of being compelled to furnish increased quantities of granite under a wrongful construction of the specifications applicable to face stones; or, in the alternative. Item 21. The value of face limestone and limestone backing actually furnished but omitted from monthly and final estimates.
The specifications attached to the contract purport to be divided into general subjects and again into particular subjects. Stone work and masoniy seem to be included in a number of general titles, such as “Description,” “Quality of Materials,” “Backing Stones,” “Knuckle Stones,” “Coping and Cornice,” etc. Under the general heading of “Masonry,” with a sub-title of “Bond,” is section 102, reading: “The masonry will be laid in regular courses, and must be thoroughly bonded throughout. No stone in one course shall overlap the stones of the course next below by less than fifteen inches. ” Under the general title of “ Face Stones ” there are numerous sub-titles. Included under “Headers” is section 109, reading: “Every second or third stone in the face of each course shall be a header. Each header must be at least three feet in face width, and its length shall be at least three times its height.” Under the sub-title of “Stretchers” is section 110, reading: ‘ ‘ Stretchers shall not be less than twice nor more than four times their height in length, nor less than three feet wide.” Sections 111 and 112 bear sub-titles of “Vertical Joints” and “Beds,” and section 114, entitled “Bottom Beds, etc.,” reads: “The bottom bed shall always be the full size of the stone, and no stone shall have an overhanging top bed (this clause applies also to backing)” The specifications also provided that “Any question as to the intent or meaning óf these specifications and drawings shall be referred to the [chief] Engineer, whose decision, approved by the Commissioners, shall be final.”
The contract itself provided that the contractor should sub
The plaintiff continued to contend against the city’s construction of the contract, and insisted that, notwithstanding whatever was said about bonding in section 102 under the general title of “Masonry,” the proper construction of the contract in this regard was to be found under the general heading of “Fáce Stones” as expressed in the various sections under the snb-titles of “Headers,” “Stretchers,” “Vertical Joints,” etc., laying particular stress upon section 114, entitled “Bottom Beds, etc.,” and the last words thereof, which in the original are italicized and read “This clause applies also to backing,” thus, as plaintiff claimed, showing an intention to qualify any general expressions of section 102 by the particular phrases and measurements found in the sections under the general head of “Face Stones.” Notwithstanding plaintiff’s protest, the city insisted upon its construction, modified as above, and, still protesting, plaintiff completed the contract according to the city’s demand.
If the affirmance of the judgment, so far as this item is concerned, required the approval of certain classes of evidence offered by both parties and consisting in part of the testimony
Item 2. Additional labor and material in furnishing and setting masonry to compensate for a settlement of two and three-quarter inches in the anchorage. For this plaintiff recovered $3,508. It is not disputed that the anchorage settled two and three-quarter inches. The practical importance of this settlement arose from the fact that it decreased the height of the anchorage to an equal degree. The effect of the specifications and drawings was to fix the height of the anchorage, because the details of each course of stone, bed joints, etc., were exactly prescribed, and the total aggregated the height of the anchorage. Manifestly, if the anchorage was built according to the contract, any deficiency in the height arose from the failure of the city’s engineers to provide for such settlement as was necessarily to be expected. I see no reason why plaintiff should not be compensated for the work covered by this item, and the amount allowed therefor by the referee was reasonable and is not seriously disputed.
Item 13. Value of sheet piling left in place and, at the request of the city, not withdrawn. It is not disputed that the sheet piling, which consisted of the timbers out of which a
Items 11 and 18 cover interest on delayed payments on account of monthly estimates. Item 20 is for interest because of similar delay in making the final payment. No question is made as to the correctness of the figures, but the liability of the city is denied. The evidence justified the finding that the payments were unreasonably delayed beyond the time when they were severally due according to the contract. The receipts given by plaintiff himself for the several monthly payments made to him or to his firm personally were qualified so as to reserve plaintiff’s claim for interest. Certain other interim payments made to a bank to which they had been assigned by plaintiff as security for loans, and for which payments the bank necessarily receipted, were not made under circumstances which justify the presumption that they were received or paid with the intent to cut off plaintiff’s claim for interest, or that the clean receipts given by the bank were evidence of any. such
The remaining items are 15 and 19, the former for furnishing larger knuckle or bearing stones than were required by the original plans, and the latter for cleaning face stones, etc., from dirt and unreasonable accumulations negligently permitted by the city; the two aggregating $822. As to these it is sufficient to say that their allowance involved questions of fact which I think were properly disposed of by the learned referee. This disposes of all the questions raised by defendant’s appeal from the judgment.
On the plaintiff’s appeal there is raised the question of his right to recover a large sum claimed as damages for alleged unreasonable delays on the part of the city. Two periods of construction were provided for by the contract. The first included the work up to a point which would allow the stringing of the cables, for which work a time period of sixteen months from the execution of the contract and giving bond therefor was allowed. The second period was to begin within four months after plaintiff was notified by the chief engineer to resume work. On account of the first period, plaintiff claims a delay of approximately eight months; and on account of the second period, a delay of some eighteen months.
There is practically no dispute between the parties that the first stage of plaintiff’s work was begun October 15, 1891, and was fully completed in March, 1900, a period of some fifteen months in excess of the time stipulated in the contract. The second stage was begun in November, 1902, and completed in or about August, 1903. The causes of the alleged delays in the second stage fall into three general classes: (1) Failure to pay moneys earned and due under the contract; (2) time lost and expenses entailed by a change in the plans for the anchor-chain chambers; (3) time lost and expenses incurred because of delay in letting and causing to be promptly executed the contracts for the towers and spans, viaducts and cables, the completion of all of which was necessary before plaintiff could begin work on the second stage of his contract.
I can see no legal ground for awarding plaintiff general damages for any loss occasioned by delay on the part of the city in
There is a clause in the contract which gives the city the right to “ suspend the whole or any part of the work * * * without compensation ” to plaintiff; but I take it that tMs covers only an actual cessation of work under direction of the city, and does not, while the work is actually progressing, serve as absolution for any and all delays that the contractor may suffer. Although in express terms the contract contained nothing bindmg the city not to embarrass plaintiff by delays mcident to material changes of plan, or to have completed within any prescribed time the work to be done by others, and upon the completion of which the forwardmg of plaintiff’s work necessarily depended, nor even any words of express obligation on the city’s part to proceed with diligence in those things which the situation necessarily mdicated were to be done by it and the doing of which controlled the progress of plaintiff’s work, I take it that it was under an implied obligation of good faith and diligenca with respect to all of these matters, and that having entered into the contract with plaintiff it was bound to go on with the work without unnecessary delay, and carry the business to completion within a reasonable time. (McMaster v. State of New York, 108 N. Y. 542.) In the light of tMs principle what does the record show ?
On August 30,1898, plaintiff had been notified of an intended change of plan, and on October third he received the detailed or working plan, embracmg the proposed changes, which were different from those mdicated by the communication of August tMrtieth. The plaintiff did not finish the work of demolishing the old buildings and clearing the site of the anchorage, excavating to the necessary depth, and driving the foundation piles upon wMch the timbers and concrete, which were to .be covered
In excuse for the long time, over one year, which plaintiff took to complete the work preliminary to the construction of the chambers, and as justifying such delay, the plaintiff relies upon evidence tending to show a failure on the part of the city to make appropriations for continuing the work, during which period plaintiff admits a corresponding cessation of activities on his part because of want of funds. For any unreasonable delay due to its failure to provide moneys for the cost of work to be done by others, and upon which the progress of plaintiff’s work depended, the city, within the rule already referred to,
The plaintiff’s claims arising out of an alleged delay of eighteen months on the part of the city in causing to be completed the several contracts for the towers and spans, viaducts and cables remain to be considered. The chief cause of the alleged delay plaintiff attributes to the time consumed by the contractors for the cable, who had agreed to complete in ten months. The plaintiff contends that the city is bound by the ten months fixed by the contract, which prima facie was a reasonable time. The referee has found that in fixing ten months for the performance of this work both the city and its contractor were too sanguine and that the period so fixed was unreasonably short, that the time actually consumed, and which there is' reason to believe was extended to some degree by a failure on plaintiff’s part to clear away portions of his plant and in part by a fire and by other unanticipated delays which could not have been reasonably avoided, was not unreasonable.
I have carefully read and weighed the mass of oral and
The judgment should be affirmed, without costs, and the order for an extra allowance affirmed, with ten dollars costs to the plaintiff.
Ingraham, P. J., MoLaughlin, Laughlin and Dowling, JJ., concurred.
Judgment affirmed, without costs, and order granting extra allowance affirmed, with ten dollars costs to plaintiff. Order to be settled on notice.