Weston v. City of Syracuse

• Decision Date: 28 February 1899
• Citation: 158 N.Y. 274,53 N.E. 12
• Parties: WESTON v. CITY OF SYRACUSE.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 274

53 N.E. 12

WESTON

v.CITY OF SYRACUSE.

Court of Appeals of New York.

Feb. 28, 1899.

Appeal from supreme court, general term, Fourth department.

Action by John Weston, as surviving partner, against the city of Syracuse. A judgment for plaintiff was affirmed by the general term (31 N. Y. Supp. 186), and defendant appeals. Reversed.

The plaintiff, the survivor of his deceased partner, Charles Utting, brought this action to recover a balance that he alleged was due upon a contract entered into between the firm of Weston & Utting and the city of Syracuse for the construction of what is generally known as the ‘Kennedy Street Sewer.’ The contract was executed in November, 1889, and shortly thereafter Weston & Utting commenced the construction of the sewer; and, during the few months following, the work so far progressed that 1,453 feet of the sewer was constructed. Then a change in the city government took place, which resulted in a change of city engineers; and the new engineer, after some investigation, reported to the common council that the sewer was not being constructed in accordance with the contract. Thereupon the common council availed itself of the clause in the contract providing for such a contingency, and suspended the work upon the claim that the contractors were not performing the work as per agreement. The common council then, by an appropriate committee, assisted by the engineer, commenced an investigation of the sewer so far as completed, and of the manner of its construction. The sewer was visited by this committee, and some of its members, in company with the deputy city engineer, passed through the sewer, and thereafter reported the result of their investigation to the common council.

On the 29th day of July, 1890, the common council, having received the report, passed the following resolution: ‘Resolved, that the contractors, Weston & Utting, having the contract for building the Kennedy street sewer, by required to complete the part of the sewer already built in accordance with the terms of the contract, except that the contractors need not be required to change the grade of the work as it now exists, and that the invert portion shall remain as now laid. And the contract for said work is hereby amended and modified to that extent, the remaining portion of said sewer to be constructed in accordance with the terms of said contract without modification.’ After the passage of the resolution, and before its approval by the mayor, the contractors entered into another contract, by which they agreed, in addition to fulfilling the obligations imposed upon them by the resolution, to correct, if required, all sags that might exist in the bottom of the sewer. Pursuant to that resolution, the contractors went on and completed the balance of the sewer in accordance with the terms of the contract, as is conceded on all sides. In the meantime, resolutions were passed by the common council extending the time for the completion of the work under the contract, no objection thereto being offered by any of the members of the common council. October 20, 1890, a partial estimate was submitted to the common council by the city engineer for work done on the sewer, amounting to $3,141.50; and the common council, by a unanimous vote of all the members responding to the call of the roll, directed that a warrant be drawn for such amount. This was done, the mayor's signature attached, and the warrant paid. From time to time thereafter, down to January 5, 1892, other partial estimates for work done on the sewer were submitted to the common council, aggregating over $13,000, and such amounts were allways paid by like direction of the common council. July 25, 1892, the commissioner of public works, through the city engineer, made and submitted to the common council a final estimate and account of the work done by the contractors, covering the whole distance of the sewer, and including extra work to the amount of $803.19, incurred in connecting the sewer with Oakwood Cemetery, which, after crediting payments already made, showed a balance due to the contractors of $9,433.41. The estimate was headed, ‘Final Account. City Engineer to John Weston and Charles Utting, Dr.’ Among other things, it contained the following certificate: ‘I hereby certify that, for the distance of 1,453 feet from Onondaga creek, the work was done in accordance with the resolution adopted by the common council the 29th of July, 1890. The next 1,000 feet were done in accordance with the contract and specifications, except in the matter of grade. At the beginning of the north end, the sewer is about two feet above the grade established by the original map, and at the end of 1,000 feet it is at said grade. The remaining portion of the sewer was completed in accordance with the contract and specifications.’ Subsequently, the common council passed a resolution directing that payment be made in accordance with the estimate, but the resolution was vetoed by the mayor; and thereafter, and on December 12, 1892, the common council passed a resolution affecting the 1.453 feet of the sewer first constructed, in which resolution it was recited that notice had been given to the contractors to take the necessary steps within three days to put their work in a condition to fulfill the terms of their contract, but that, notwithstanding such notice, the contractors did not, within the said three days, nor at all, take such measures as, in the opinion of the city engineer, were necessary to insure the satisfactory completion of said work, and it was ‘resolved, that said contract be, and the same is hereby, declared abandoned by said contractors, said Weston & Utting; and further resolved, that the commissioner of public works forthwith notify such contractors to discontinue all work under said contract.’ The city authorities having refused to accept the contract as completed, but, on the contrary, having formally declared it not completed, and the contract abandoned by the contractors, and having refused to take any steps whatever under it to make an assessment upon the property benefited, in order to raise the money with which to pay the expenses of constructing the sewer as provided by the contract, the plaintiff brought this action. He claims that, notwithstanding it was provided in the contract that no payment should be made until the cost was assessed upon and collected from the assessable taxpayers liable for local taxation for the construction of sewers, the defendant has been guilty of a breach of contract, and therefore he is entitled to recover the damages caused to him by their failure to make performance. Upon the trial it was insisted by the defendant, and testimony was offered tending to prove, that the contractors failed to comply with the contract in other respects than those mentioned in the resolution of July 29th; and it is made to appear that after the passage of the resolutions declaring that the contractors, Weston & Utting, had abandoned the contract, the authorities had caused a portion of the sewer to be rebuilt. Evidence tending to show faulty construction was given. On the other hand, testimony was presented tending to support the contention of the plaintiff that all the variations from the contract were made with the knowledge of the city engineer in charge of the work, and done with his approval and by his direction; and it was insisted that such approval and direction were founded upon actual necessity in some respects, and good judgment in others. The court decided that, as to the variations in the construction of the sewer referred to in the resolution of July 29th, the common council had waived strict performance, and modified the contract to that extent, and that they had also waived such defects as had come to the knowledge of the common council before passing this resolution, although the defects facts were not mentioned therein; and he submitted to the jury the question whether, in all other respects, there was a substantial performance of the contract by the contractors, and the verdict in favor of the plaintiff constituted an affirmative answer to that question. The judgment entered thereon was affirmed at the general term. Other facts appear in the opinion.

Bartlett, J., dissenting.

Charles E. Ide, for appellant.

George H. Sears, for respondent.

PARKER, C. J. (after stating the facts).

On this review it must be taken as established by the verdict of the jury that the plaintiffs substantially performed their contract with the defendant, except as to the construction of the first 1,453 feet of the sewer, the work upon which was done prior to the investigation by the common council. That investigation resulted in a resolution waiving performance so far as the work done was not in conformity with the plans and specifications, and modifying the contract to the extent that it should be in conformity with the work already done. The trial court decided that the resolution of July 29, 1890, effected that result. The appellant concedes that such was the purpose of the common council, but nevertheless insists that it was beyond the power of that body to waive performance of any of the requirements of the contract or specifications, and that in holding otherwise error was committed. The result of our examination of the charter of the city of Syracuse leads us to the conclusion that it does not place any limitations upon the powers of the common council in respect to such acts as the common council undertook to perform by means of the resolution in question. Aside from certain limitations that we need not specify, all details are left to the common council, and not made the basis of the consent of the property owners. The modification attempted, therefore, was within the power of the common council, under the ruling of this court in Meech v. City of Buffalo, 29 N. Y. 198,Moore v. City of Albany, 98 N. Y. 396, and ...