Bor. Const. Co. v. City of New York

• Decision Date: 06 December 1910
• Citation: 93 N.E. 480,200 N.Y. 149
• Parties: BOROUGH CONST. CO. v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 149

93 N.E. 480

BOROUGH CONST. CO.

v.CITY OF NEW YORK.

Court of Appeals of New York.

Dec. 6, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Borough Construction Company against the city of New York. From a judgment of the Appellate Division (131 App. Div. 278,115 N. Y. Supp. 697) affirming a judgment of the Trial Term for plaintiff, defendant appeals. Reversed, and new trial granted.Archibald R. Watson, Corp. Counsel (Terence Farley, of counsel), for appellant,

Edward M. Grout, for respondent.

HISCOCK, J.

This action is brought really to recover the value of extra materials furnished and extra labor done by the respondent while constructing a large sewer under contract with the appellant in the borough of Brooklyn. It is not brought, however, on the theory of recovering on or under the contract for such extra material and services, but is instituted, and thus far has been sustained, on the theory that the appellant unjustly required the respondent to furnish materials and do work not covered by its contract, and thereby committed a breach of the contract for which damages measured by the value of such material and work may be recovered. The sewer which the respondent contracted to construct was a large one, the price being upwards of $800,000. The engineer was the official principally charged with the duty in behalf of the city of supervising the execution of the contract and securing the proper performance thereof by the contractor. Amongst other things, it was provided: ‘To prevent all disputes and litigation, it is further agreed by and between the parties to this contract, that the chief engineer of sewers shall in all cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof, and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive upon said contractor.’

Two provisions in the contract are directly involved in the controversy. One of these provided that when the work to be constructed ‘is all or partly below the city datum (meaning high water) Portland cement must be used when directed by the engineer.’ The other was to the effect that ‘during the progress of the work, and until the entire completion and final acceptance thereof, the sewers, drains, basins, culverts and connections are to be kept thoroughly cleaned throughout and left clean, and the drainage of any old sewer that may be taken up or intercepted must be provided for by the contractor.’ Claiming to act under the first clause, the engineer in charge demanded that the contractor should lay not only that portion of the sewer which lay below the city datum line in Portland cement, but also should lay in such cement that portion of the same section which was above the line, this cement being much more expensive than that which the contractor was otherwise allowed to use. Again, claiming authority I suppose under the second clause quoted above, if anywhere, the engineer demanded that the contractor make the sewer ready for an alleged inspection by the city officials, and to that end that he not only do various things in the way of cleaning it up, but that he prepare a lift by which to lower automobiles into the sewer and illuminate the sewer its entire length, which was done with a great number of candles. In each case the contractor in substance protested that the things thus required of him were not covered by his contract, but on the insistence of the said official finally did as he was required, and it is because of what he was thus required to do that he brings this action. There are some preliminary questions to be disposed of before we reach the main one whether he can succeed because thus required.

The first one is raised by the contention on behalf of the appellant that no sufficient notice of claim was filed in behalf of the respondent. My attention has not been called to and I have been unable to find any place where this question was presented on the trial in a manner that survives the unanimous affirmance of the judgment secured at the Trial Term.

A second question is whether the appellant is in a position in view of the unanimous affirmance to attack the judgment which has been rendered against it on the merits. I think that by its objections and exceptions to the reception of evidence and to the charge and refusals to charge it has placed itself in a position to do this.

The next question is whether the respondent was required to furnish materials and do work which were not covered by its contract, for of course this claim lies at the bottom of its recovery. I think it was. It is clear that some of the things which it did in preparation for the so-called inspection trip of the city officials, such as installing an elevator and placing candles the entire length of the sewer and perhaps other things, were not required by the contract. I also think it is reasonably clear that it was not compelled to lay in Portland cement those portions of the sewer which were above the city datum. Of course the intent of the clause in the contract on this point which has been quoted was to require a higher grade of cement where the sewer was exposed to the action of water, and there would be no sense in so construing it as to require the upper part of the sewer which was never subjected to the action of water to be laid in Portland cement because the lower portion was subject to the action of water and therefore should be laid in it. It is asserted without contradiction that for its entire length some part of the lower portion of the sewer was under the line in question, and this being so, the contention of the appellant would result in requiring the entire sewer to be laid in Portland cement, a result evidently not dreamed of by the parties.

The disposition of these questions brings us to the main inquiry, whether a recovery may be allowed on the theory of a breach of contract chosen by the respondent because it was unjustifiably required to furnish these extra materials and do this extra work in spite of its protest.

The learned counsel for the appellant with considerable insistence advances arguments applicable to an action brought to recover on contract for extra services and materials and leading to the conclusion that such recovery cannot be permitted because such materials and work were not called for or authorized in the manner prescribed by the contract. Of course on the premises formulated by counsel on this theory his conclusions are unimpeachable, but the answer to the entire argument is that this action does not rest on any claim for extra services or...