25 A.D.2d 329 | N.Y. App. Div. | 1966
This is an appeal by the State from a judgment of the Court of Claims (Simon, J.), awarding the claimant $443,652.98, plus interest, for expenses of constructing additional detours and $19,920.43, plus interest, for delay on the whole project caused by the construction of these extra detours.
On April 14, 1959 claimant contracted with the State to reconstruct 6.11 miles of the Southern State Parkway on Long Island. The original completion date was October 1, 1960, but through extensions granted by the State the work was finally completed in July of 1962. During this period claimant built some 123 to 128 detours to divert traffic from adjacent work sites where other contractors were also engaged in reconstruction operations. It is not disputed that the specifications upon which the claimant bid called for only 28 detours to be constructed or that the construction of the detours was necessary. Furthermore the record reveals that the State Engineer directed the construction of these detours.
The State initially disputes all liability contending that by the terms of the contract claimant was to build all detours that proved to be “ necessary ” at the project no matter how many were involved. We cannot accept this construction. The only reasonable interpretation to the conflicting terms of the agreement is that as part of the agreement claimant would construct temporary detours “ as necessary ” and “ when directed by the engineer ’ ’ but only up to a limit of 28 such detours. To this same end the State relies on a contract provision which reserves to it “ the right, at any time during the progress of the work, ■to alter the plans or omit any portion of the work as it may deem reasonably necessary for the public interest; making allowances for additions and deductions at the prices named in the proposal, for this work without constituting grounds for any claim by the contractor for allowance for damages or for loss of anticipated profits, or for any variations between the approximate quantities and the quantities of the work as done.” The ■State contends that by virtue of this provision it was not liable for damages for the additional detours required but only for the unit prices as provided in the contract for the extra materials utilized for which claimant has been fully compensated. The validity of this argument depends on whether the additional work amounted to only a quantitative increase or a
The State also urges that even if claimant is entitled to a quantum meruit recovery, the method of computing the amount due in the instant case was erroneous. The Court of Claims arrived at the award figure by subtracting the $890,972.50 paid to the claimant for detours (based on the unit prices specified in the contract plus the sum of $104,000 as specified in the contract for “Maintenance and Protection of the Traffic”) from the $1,334,625.48 it actually cost the claimant to build all detours. The State argues, and we believe correctly, that it is only the extra work above that utilized in constructing the 28 original detours contemplated in the contract for which the claimant is entitled to recover in quantum meruit (Matter of Stange v. Thompson-Starrett Co., 261 N. Y. 37, 44-45). Here there is absolutely no proof as to how much of the total $1,334,625.48 cost is attributable to the original detours, which should be compensated for on a unit price basis under the contract, and how much to the additional detours. Similarly, since the amount included as part of the $443,652.98 award for extra work performed by a paving subcontractor was arrived at by simply
With respect to the award for delay on the whole project caused by the construction of the extra detours, we find, in view of the foregoing discussion, that the weight of the evidence supports the award rendered.
The judgment should be reversed, on the law and the facts, and a new trial ordered.
Judgment reversed, on the law and the facts, and a new trial ordered, without costs.