Mulholland v. Mayor

• Decision Date: 26 March 1889
• Citation: 20 N.E. 856,113 N.Y. 631
• Parties: MULHOLLAND v. MAYOR, ETC., OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 631

20 N.E. 856

MULHOLLAND

v.MAYOR, ETC., OF NEW YORK.¹

Court of Appeals of New York.

March 26, 1889.

Appeal from supreme court, general term, First department.

Action by Ann Mulholland, assignee of John Mulholland, against the mayor, aldermen, and commonalty of the city of New York, upon a contract to do certain work on a street in the city of New York. Judgment for plaintiff, but for a less sum than she claimed, and she appealed to the general term, where the judgment was affirmed, and she again appeals.

L. Laflin Kellogg, for appellant.

Henry R. Beekman, David J. Dean and Alexander D. Keyes, for respondent.

DANFORTH, J.

On the 9th of November, 1877, a contract was made between the plaintiff's assignor, as contractor, and the defendant, as owner, for grading and setting curb and gutter stones and flagging in Sixty-Sixth street of the city of New York. The contractor was to provide labor and materials, and the defendant was authorized to appoint such person as they chose to inspect the material and the work done under the agreement. The grading was to agree with the plans and profile of the street on file, and the whole work was to be completed in 300 days from its commencement. The contractor commenced November 19, 1874, and, after much delay beyond the 300 days, did complete and finish it, on the 4th of December, 1884. At the price named in the contract, the work amounted to $13,808.40; of this $9,970.70 has been paid, and under the first cause of action the balance, or $2,029.10, is claimed. The defendant insists that this balance should be reduced (1) by the sum of $3,642, being the inspector's wages at $3 a day; and (2) by the further sum of $1,000 as overpayment for rock excavation.

As to the first item, the contract provides for it in case the work was delayed; and the plaintiff, conceding that delays did occur, also concedes the right of the city to make this deduction for inspection, and at the amount stated, unless the delay was caused by the defendant or by the acts or omissions of its servants. The trial judge submitted this question to the jury, and charged them that if the contractor had given a reasonable excuse resulting from the acts of the defendant for his failure to perform the work, he would not be chargeable for the inspection fees during such delay. No exception was taken to this instruction, or different instructions asked for, and the question is whether the evidence relating to it is so clearly in favor of the plaintiff as to require a ruling in her favor as matter of law. The specific excuse of the plaintiff is that the contractor could not go on with the work without grade lines and levels; that the defendant was bound to furnish them, but delayed in doing so, and hence caused delay on his part. It does not appear by the terms of the contract that the city was bound to furnish those lines or levels, but it does appear that there was some action on...