12 A.D. 391 | N.Y. App. Div. | 1896
There are two causes of action set forth in the complaint herein. On the trial the jury found in favor of the plaintiffs on the issues joined on the first cause of action only. From the judgment entered on the verdict, and from an order denying a motion for a new trial the defendant appeals.
The controversy relates to a contract made between one Cox, the plaintiffs’ assignor, and the defendant for regulating, grading, draining and invproving the easterly portion of the grounds included in Van Cortlandt Park. The contract was awarded to Cox on a bid made by him, but the work was done by the plaintiffs and to the full satisfaction of the commissioners of the department of public parks, expressed and certified by. their engineer, as required by the contract. The whole work contracted for consisted of various items of excavation, of sewer building, of masonry, and of filling in and top' soil,, all the. materials for which were furnished by the plaintiffs. On the trial, the contest was narrowed down to the one item of the amount of material supplied for filling and top soil, and placing the same in embankment, which, by the contract, was to be paid for at forty-six cents per cubic yard. The plaintiffs claim that they furnished and put in place 155,819 cubic yards, according to measurements asserted by them to have been made correctly and in accordance with the terms of the contract, while the engineer of the park commissioners insisted and certified that the measurements, as he finally ascertained and fixed them, showed that only 138,747 cubic yards had been furnished by the plaintiffs.
The section of the contract under which the dispute arises is as follows : “ The filling or embankment below the top soil to be placed thereon will be measured and computed from the levels taken upon the present surface of the grounds to be filled, and no allowance for settlement or shrinkage will l>e allowed or paid for.” There was no way of ascertaining by count or tally the exact amount of filling
The contract was entered into after proposals for the work were published and biddings made. Plans and specifications of the work to be' bid for were prepared, which plans and specifications were examined by Mr. Cox before he put in his bid, and that bid was made and accepted with full knowledge of certain conditions of which particular notice was given, and among them the following : ■“ Bidders must satisfy themselves by personal examination of the location of the proposed work and by such other means as they may prefer, as to the accuracy of the foregoing engineer’s estimate, and shall not at any time after the submission of an estimate dispute or complain of such statement or estimate, nor assert that there was any misunderstanding in regard to the depth or character of the 'excavation to be made or the nature or amount of the work to be done.” And also that “ bidders will be required to complete the
Being thus narrowed down to the -question of fact above referred to, it is indisputable, that, from the terms of the contract, the engineer’s return arid certificate, unless they can be successfully attacked, furnish conclusive evidence of the measurements in accordance with which the plaintiffs would be entitled to payment. As was said in O'Brien v. The Mayor (15 N. Y. Supp. 520), “ when a certificate' is given, -it-is
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Rtjmsey, Williams and Ing-raham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.