145 N.Y.S. 604 | N.Y. App. Div. | 1914
Lead Opinion
This action is upon a contract for repairing asphalt pavements within a specified area in the city of New York. The contract was dated August 11, 1911, and it was so drawn as to cover the period expiring December 31, 1911. The contract required the plaintiff to make repairs to the asphalt pavement of the specified streets when and where directed as may be deemed to be necessary and to maintain said pavement in good condition to the satisfaction of the borough president during the term of the contract. For this it was to be paid a specified price per square yard for asphalt pavement measured in place, and other specified price for laying Portland cement concrete foundation, or relaying old stone pavement, if and when found necessary.
The contract provided for monthly ninety per cent payments upon provisional or partial estimate, and a final payment upon a final estimate at the completion of the contract. It was specifically provided that: “The amount of pavement to be paid for shall be that computed from the records of the Engineer in charge of the work.” The work was begun immediately after the execution of the contract. The pavement to be relaid was
The contract contains the usual stringent provision authorizing the engineer to require imperfect or unsatisfactory work to be done over again, but it does not appear that any work was condemned under these clauses. This fact, coupled with the certificate quoted above, which was appended as well to the final certificate as to the provisional or partial certificates, justifies the inference, at least on appeal from a nonsuit, that no part of the amount deducted from the total area of pavement laid was so deducted because of defects in the work and compels the inference that the deductions were made solely on account of the “ over-laps ” resulting as above indicated in taking up and replacing work which had once been done satisfactorily in accordance with the contract and the orders of the engineer in charge.
The court excluded such evidence offered by plaintiff and finally dismissed the complaint upon the ground that the final certificate of the engineer was binding and conclusive upon the contractor unless successfully impeached for fraud, bad faith or palpable mistake appearing upon the face thereof. There is, of course, no doubt about this general rule, and so the plaintiff freely concedes. It is not, however, applicable to every case and the plaintiff’s contention is that an equally well-established rule is that the final certificate and determination of the engineer are not binding upon the contractor where the engineer has attempted to interpret the contract and has erred in an interpretation based upon the law applicable thereto. The rule for which plaintiff contends has often been enunciated and applied, and perhaps never more satisfactorily than in Burke v. Mayor (7 App. Div. 128), which has frequently been cited with approval. In that case the late Presiding Justice Van Brunt wrote as
The court also excluded certain evidence which, as it is
It follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
McLaughlin, Laughlin and Clarke, JJ., concurred; Ingraham, P. J., dissented.
Dissenting Opinion
By the contract and specifications under which this work was done the plaintiff agreed to remove and replace with new asphalt pavement all such portions of the existing asphalt pavement within the limits specified as had become badly worn, bunched, depressed or damaged; that any materials furnished or work done not satisfactory to the engineer should be immediately removed and satisfactorily replaced by the contractor; that the contractor would furnish all the labor and materials at his own expense, necessary or proper for the purpose, and in a good, substantial and workmanlike manner, and in strict accordance with the specifications therein contained or thereto attached, make repairs to the asphalt pavement of the streets mentioned, when and where directed as may be deemed to be necessary, “ and maintain said pavement in good condition to the satisfaction of the President during the term of this contract;” that “the engineer shall inspect the materials to be furnished and the work to be done under this agreement, and see that the same strictly correspond with the specifications herein contained or hereto annexed, which materials and workmanship shall always be subject to the approval of the engineer;” that to prevent all disputes and litigation, the engineer should in all cases determine the amount or the quality of the several kinds of work and mate
The plaintiff did the work required of it by the defendant’s officers, and the engineer issued the final certificate as to the amount of work done, and for which the plaintiff was entitled to be paid, and the plaintiff has been paid the amount required by the final certificate. It brings this action to recover an additional amount represented by the work done in taking up certain portions of the pavement that it had laid under the contract, and replacing same with hew pavement as directed by the engineer. This contract is plain and unambiguous. The plaintiff entered into it with full knowledge of its provisions. Under the contract the amount the plaintiff was to receive was to be evidenced by the final certificate from the engineer, and the city was not to be estopped or precluded by the action of any engineer or other officer at any time either before or after the final completion and acceptance of the work and payment therefor. Under the contract the plaintiff was bound to maintain the portion of pavement repaired by it in good order and condition during the whole term of the contract, and it was bound to repair any portion of the pavement that it laid which had become out of repair during such period. The complaint alleges that the engineer had made the final certificate, and had been paid by the defendant the amount called for by that final certificate; that the plaintiff duly demanded from the chief engineer of the bureau of highways and from the president of the borough of Manhattan that they and each of them certify to the comptroller for payment the remaining 1,528.7 square yards of asphalt pavement laid by it, and the said chief engineer of the bureau of highways and the president of the borough of Manhattan refused to make and transmit such certificate to the comptroller of the city of New York; that the acts of the said chief engineer of the bureau of highways and the president of the borough of Manhattan of the city of New York, and of each of them in refusing to make and transmit a certificate for payment for 1,528.7 square yards of asphalt pavement a,t. the price specified were arbitrary and erroneous and constituted a fraud upon the
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.