Allen v. City of Oneida

• Decision Date: 24 March 1914
• Citation: 210 N.Y. 496,104 N.E. 920
• Parties: ALLEN et al. v. CITY OF ONEIDA.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 496

104 N.E. 920

ALLEN et al.

v.CITY OF ONEIDA.

Court of Appeals of New York.

March 24, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Theodore D. Allen and another against the City of Oneida. From a judgment of the Appellate Division (151 App. Div . 943,136 N. Y. Supp. 273), affirming by a divided court a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

D. C. burke, of Oneida, for appellant.

H. W. Coley, of Oneida, for respondents.

HOGAN, J.

The city of Oneida owns and operates a municipal water supply. On July 14, 1905, at a special election of the taxpayers of the city, it was voted to sell bonds of the municipality to the amount of $45,000 for the purpose of enlarging and improving the water supply and the waterworks plant. Under the charter of the city the board of public works was authorized to take charge and control of the waterworks plant, and to enlarge, improve, and add to such plant as necessity required. On July 17, 1905, the board of public works duly published a notice to contractors inviting proposals for the work of enlargement and improvement of the water supply system of the city, according to plans, specifications, and descriptions adopted by the board and filed in the office of the city clerk. Amongst other items of work was concrete masonry estimated in dam, gates, and screen chamber at 2,580 cubic yards. The plaintiffs, contractors in the city of Oneida, presented a bid to the board of public works wherein they proposed to construct the estimated quantity, to wit, 2,580 cubic yards of concrete masonry for the sum of $5.90 per cubic yard. Included in the proposal was other work to be done, but the question of difference between the parties has reference alone to the item of concrete masonry. The proposal of plaintiffs was accepted by the board of public works on the 8th day of August, 1905, and, pursuant to a resolution adopted by that body, the mayor of the city and city clerk, on the 14th day of August, 1905, entered into a contract with the plaintiffs for the work contemplated in the notice published and specified in the bid made by plaintiffs which had been accepted by the city. While the estimated yardage was specified in the contract the city reserved the right to increase or diminish the quantity. Whatever the amount of concrete furnished by the plaintiffs, the same was to be paid for at the contract price of $5.90 per cubic yard.

[1] For the purpose of preventing any dispute as to the quantity furnished, it was mutually covenanted that upon completion of the work the city engineer should measure up the work, and the superintendent of public works should thereupon make a final estimate of the same in writing showing the whole amount of the work done under the contract, and thereupon the board of public works was to pay for the same within two weeks. The superintendent was also to determine any other disputes relative to the fulfillment of the contract, and his estimate and decision was, by the terms of the contract, made final and conclusive and a condition precedent to the receipt by the contractors of any money under the contract. By other provisions of the contract the contractor agreed that he should have no claim for compensation for extra work unless the same was ordered in writing by the superintendent, and that he should not be entitled to payment or receive any payments except in the manner set forth in the contract.

January 15, 1907, a final estimate of the work under contract 34 was made by the superintendent of public words and the city engineer, and filed in the office of the board of public works. Such final estimate showed 3,180.7 cubic yards of concrete masonry, contract price, $5.90-$18,766.13. The plaintiffs assigned said certificate to the Farmers' & Merchants' Bank and the city paid the amount thus certified to the assignee. Thereafter and in June following the plaintiffs presented a claim against the city for 153.75 cubic yards of concrete at $5.90-$907.12. This claim stated that the total amount of concrete furnished was 3,334.44 cubic yards, while the claimants had been paid only for 3,180.70, ‘as per your final estimate which leaves a balance of 153.75 cubic yards as per above bill,’ amounting at prices stated to $907.12. This action was brought to recover that amount, together with a claim arising out of a separate contract, and hereinafter referred to.

It was the manifest intention of the parties when the contract was made that the officers of the city should determine the quantity of work performed, and that plaintiffs should, in the absence of fraud, be bound thereby; that plaintiffs should be entitled to demand or receive payment only in the...