26 A.D.2d 766 | N.Y. App. Div. | 1966
Judgment unanimously modified on the law and facts in accordance with the Memorandum and as modified affirmed, without costs of these appeals to either party. Memorandum: These are cross appeals from a judgment of the Court of Claims which awarded claimant Yonkers Contracting Company Inc. $95,110.59 for various claims arising out of a contract for the construction of a portion of the New York State Thruway. Included in the award was an item of $50,624.60 for the placement of a quantity of “39 x gravel” over the amount in the final estimate. The contract specifications set forth the method of measurement of quantities employed by the engineer and made his determination of quantities involved final, binding and conclusive upon the contractor. The claimant relied on a calculation of truck loads as a basis for the determination of quantities. In Dowd v. State of New York (239 App. Div. 141, 142) it was stated: “ Computation based on truck loadings cannot prevail over estimates based upon the contract method of measurement unless at least it is shown to be impossible for the contractor or his assignee to employ the method of measurement stipulated in the contract.” There is no demonstration in the evidence of fraud, bad faith or palpable error in calculation on the part of the Authority and its estimate made in accordance with the contract provisions must prevail. The judgment allowed interest in the amount of $5,682.29 on the undisputed amount of $121,474.19 owing pursuant to the final estimate submitted, such interest running from August 19, 1958, the date of final acceptance of the work as complete, to October 20, 1959, the date of payment of the judgment for the undisputed amount severed from the other claims. Interest on the interest accumulated as above was allowed in the amount of $1,179.39 from the date of payment of the judgment to December 28, 1964, the date of entry