77 N.Y.S. 637 | N.Y. App. Div. | 1902
It is claimed by the appellant, as a first ground upon which to defeat a recovery in this action, that by the provisions of the contract there could be no assignment of the same without the previous written consent of the commissioner of public works, or his successor, indorsed thereon, and as such consent was never given no cause of action vested in the plaintiff as against the defendant. In Fortunato v. Patten (147 N. Y. 277) it was held that such a provision of the contract was for the protection of the city and to secure for it the skíII and intelligence of the person with whom the city contracted. It was recognized in that case, however, that there
By the terms of the contract it is insisted that the commissioner of public works was justified in declaring the contract abandoned. Upon this subject the contract provides that the commissioner may at any time, if lie shall be of opinion and shall so certify in writing that the work, or any part thereof, is unnecessarily or unreasonably
The contract was comparatively large, took a considerable time for its completion, and necessarily involved a large expenditure of money in performing the work. It is necessarily to be presumed, therefore, that the seventy per cent payment was necessary from time to time as the work progressed, to enable the contractor to receive sufficient money therefrom to properly carry on the work.
It is undisputed that the surveyor, acting for the city, gave to the contractor the certificate contemplated thereby under and by virtue Of which the contractor became entitled to have and receive, as a seventy per cent payment, the sum of $1,980. To this certificate the commissioner of public works made no objection. On the contrary, after consultation with the comptroller, the commissioner of public works examined the work, and recommended to the comp-’ troller that the certificate be paid'as certified and returned the samé to the comptroller for payment. So far as the terms of the written contract are concerned, there is nothing therein which authorized the comptroller either to suspend the work under the contract or refuse payment when properly certified by the surveyor. While undoubtedly the comptroller by the terms of the contract was invested with authority to refuse payment when he had reason to believe that the same was improper and the result either of collusion and fraud or mistake, he could not arbitrarily refuse payment if the certificate was properly given.for work performed. He had no power to work a forfeiture of this contract and place the contractor in default under the terms of the contract. That authority was invested in the commissioner of public works, and the comptroller was bound to act fairly and reasonably in refusing payment: ’ It is clear, therefore, that so far as the contract is concerned, all of the persons "who were charged with the-duty of its immediate exe--'
And so also the contractor, if he thereafter performed the con' ract, was entitled to the tenth certificate and payment thereunder. These two certificates carry the contract to completion so far as the filling and grading were concerned. It is, therefore, evident that the plaintiff showed himself entitled to recover, as he established a breach of the contract by undisputed proof so far as the action of the city and its agents are concerned, who were charged with the duty of executing this contract. These acts prima facie constituted breaches of the contract on the part of the city. (Jones v. Judd, 4 N. Y. 411; Wharton & Company v. Winch, 140 id. 287; Curnan v. D. & O. R. R. Co., 138 id. 480.) And the refusal on the part of the city to pay the tenth certificate was not justified if the work had been performed. (Bowery Nat. Bank v. Mayor, 63 N. Y. 336.)
The only ground, therefore, upon which the defendant could resist payment was by showing either actual fraud or collusion or mistake. No fraud or collusion was shown; at least, the evidence would scarcely have justified such finding. The defense came, therefore, to rest upon the ground that the certificate was mistakenly given under a misapprehension as to the extent of the work which had been performed. Upon this subject an immense volume of testimony was given upon both sides, running the whole gamut of the character of the soil upon which a part of the filling was placed, measurements of engineers based upon actual borings, amount of material actually transported upon the cars and used in the construction of the grade, expert testimony, soundings, and practical expert observation from every point of view of which the case admitted. It is not difficult, therefore, to see that there was a wide divergence in the testimony which was given by the various witnesses and conclusions diametrically opposed were drawn by experts and engineers from substantially the same conditions. It would serve no useful purpose to incumber this opinion with an exhaustive review of the testimony given, upon the trial. We have carefully read the whole of the record and have no difficulty in finding the existence of evidence sufficient to support the findings
Van Brunt, P. J., O’Bríen, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.