Nason Manuf'g Co. v. Stephens
| Decision Date | 06 October 1891 |
| Citation | 127 N.Y. 602,28 N.E. 411 |
| Parties | NASON MANUF'G CO. v. STEPHENS. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered on order of the general term of the supreme court in the second judicial department, affirming judgment entered upon report of a referee in favor of the plaintiff. Reversed.
On or about the 1st of July, 1883, the plaintiff entered into contract with the defendant to construct for the latter an extension to the stand-pipe or watertower of the Coney island water-works at Gravesend, on Long island, from the top of it, then 72 feet from the ground, to the additional height of 40 feet, in the manner and of the dimensions particularly specified, and complete it by the 1st day of August then next, for the sum of $1,240; and the defendant undertook to maintain the water level in the pipe at such height as might be desired by the plaintiff for the convenience of its workmen. The plaintiff did not within that time proceed to the performance of the work, but afterwards the plaintiff caused the addition to the tower to be constructed, and the work done upon it was completed about the 1st of November, 1883. The referee found that the agreement of the parties was modified, and the time for the completion of the work extended; but that the defendant declined to maintain the water level in the tower at the height required by the plaintiff for its workmen; and that, as the consequence, the expense of $849.75 was incurred by the plaintiff in the construction of scaffolding on the outside of the tower, to enable the plaintiff to perform the work, and for that sum, with interest, in addition to the contract price, the referee directed judgment for the plaintiff, less $175, allowed to the defendant by way of counter-claim for partial default of the plaintiff in the performance of the contract.
Charles M. Morgan, for appellant.
Theodore F. Miller, for respondent.
BRADLEY, J., ( after stating the facts.)
While the performance by the plaintiff of the contract was a condition precedent to the right of recovery, the conclusion of the referee that it was substantially performed had the support of evidence, and therefore must, for the purposes of this review, be deemed conclusive. Smith v. Brady, 17 N. Y. 173; Woodward v. Fuller, 80 N. Y. 312.
The main question has relation to the claim allowed the plaintiff for the expense of the scaffolding constructed on the outside of the tower, to support the workmen as they proceeded to and with the construction of the 40-foot extension of it, above the 72-foot tube, upon which it was erected. The evidence tended to prove that the purpose of the maintenance of the water level, as provided by the contract, was to enable the workmen to stand upon a raft in performing the work; and the matter of the practicability of that method of supporting them for that purpose, questioned by some of the evidence, is not here for consideration. If that means had been made available, the expense of providing the float would have been incurred by the plaintiff; and, as in the distance of 10 feet upward the reduction of the diameter of the tube to be constructed was from 20 feet to 6 feet, the adaptation of the raft to the diminishing surface of the column of water for it to rest upon would, as the work proceeded for that distance, have been necessary. It does not appear what the expense would have been of providing and suitably adapting this to the purposes of a platform for the workmen, nor was any allowance made for it by the referee, as against the expense of the outer scaffolding. Upon the exception to his conclusion to that effect arises the question whether the recovery for the full amount of the...
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