112 N.Y.S. 535 | N.Y. App. Div. | 1908
The only question requiring our consideration is whether the contract upon'which the plaintiff has recovered is entire or divisible. The learned trial justice has held that the agreement upon which the action is brought contained two contracts, one for the construction of the sewer and its' appurtenances, and the other for the construction of a disposal plant, each of which was separate and distinct from the other ; that the former was valid and binding on the parties and the other void. The plaintiff has been permitted to recover the damages it has sustained through the breach of this contract by the defendant, and concedes, for the purposes of this appeal, that the contract for the disposal plant was illegal and void because of the failure of defendant’s. board of estimate and apportionment to comply with the requirements of its charter. It appears
I think the learned trial justice was right in holding that there were íavo separate and independent contracts, each complete in itself and not dependent upon the other; there is at least a single contract containing severable or divisible portions, one of which being invalid may be rejected and the other being valid may be asserted and enforced. It was the intention of the municipal authorities in all of its proceedings prior to the signing of the contract, to have the two proposed improvements separable so that it might, under the authority given by section 397 of the charter (Laws of 1901, chap. 466), let the construction of the' sewer to the lowest bidder and the construction of the disposal plant to a different bid
Woodward, Hooker, Gaynor and Miller, JJ., concurred.
Judgment modified by deducting $3,321.53, and as so modified affirmed, with costs.