Brady v. Mayor
| Decision Date | 26 April 1892 |
| Parties | BRADY v. MAYOR, ETC., OF CITY OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
Action by Bernard Brady against the mayor, aldermen, and commonalty of the city of New York to recover the balance due on a contract. From a judgment of the general term affirming a judgment of the trial term, entered on the direction of a verdict, defendant appeals. Affirmed.
David J. Deane, for appellant.
L. Laflin Kellogg, for respondent.
The judgment under review awards to the plaintiff, as assignee of one John Brady, the sum of $42,792.35, adjudged to be due under a contract between John Brady and the defendant, by which it was provided that Brady should regulate and grade Ninety-Fifth street, from Tenth avenue to River Street drive, for which he was to receive eight dollars per cubic yard for excavating earth, one-fourth of a cent per cubic yard for excavating rock, and one-fourth of a cent per linear foot for furnishing and setting curbstones, and for furnishing and laying flagging, per square foot, one-fourth of a cent. This will be recognized as what is known as an ‘unbalanced bid,’ but its legality is not sought to be questioned here, and, if it were, it would not be open for consideration, in view of the discussion of the question as presented by the contract now before us by RUGER, C. J., in 115 N. Y. 599, 22 N. E. Rep. 237. Prior to the commencement of this action the officials, authorized by the contract to represent and act for the city in all matters relating to the performance of the work stipulated for by it, made the following certificates:
‘Surveyor's Certificate.
‘I hereby certify that the following amount of work has been done in the matter of regulating and grading Ninety-Fifth street, from the west curb of Tenth avenue to the east line of Riverside drive, and setting curbstones and flagging sidewalks therein.
%‘john brady/,
‘Contractor since the commencement of the work.
‘14,667 cubic yards of earth excavated, (fourteen thousand six hundred and sixty-seven.)
‘10,831 cubic yards of rock excavated, (ten thousand eight hundred and thirty-one.)
‘_____ cubic yards of filling.
‘2,591 2 3/4-12 linear feet of curb set. (twenty-five hundred and ninety-one 2 3/4-12.)
‘10,458 7-12 square feet flagging laid, (ten thousand four hundred and fifty-eight 7-12.)
‘_____ linear feet of dry stone box culverts.
‘_____ linear feet of picket fence.
‘HERMAN K. VIELE, Surveyor.
‘Date, May 27, 1885.
%‘george a. jeremiah/,
‘Superintendent of Street Improvements.
‘Final Payment.
‘The city of New York, to John Brady, contractor, Dr.
‘For work done in the matter of regulating and grading Ninety-Fifth street from the west curb of Tenth avenue to the east line of Riverside drive, and setting curbstones and flagging sidewalks therein. Certificate of acceptance of the work by the commissioner of public works, dated September 21, 1885, (chapter 397, Laws 1852; chapter 580, Laws 1872, § 4.) Street improvement fund, authorized or contracted for after June 9, 1880. Ordinance approved March 20, 1883, (section 139, N. Y. Consolidation Act of 1882.) Estimated cost, $15,676.28.
‘Date, 1885, Sept. 30.
‘Chief Engineer Croton Aqueduct.
‘GEORGE A. JEREMIAH, ‘Superintendent of Street Improvements.
‘I hereby certify that I have examined the above account, and believe it to be correct; that the prices charged are in accordance with the terms of the contract for regulating and grading Ninety-Fifth street, dated July 31, 1883; and such services as are herein specified have been properly performed, according to the certificates of the officers of this department duly appointed to supervise the same.
‘ROLLIN M. SQUIRE,
‘Commissioner of Public Works.
‘I certify that the work mentioned in the contract herein specified has been completed according to the terms of said contract, and is satisfactory.
‘ROLLIN M. SQUIRE,
‘Commissioner of Public Works.’
The judgment recovered is for the sum thus certified to be due, with interest added.
It is not asserted by the answer that the contract was fraudulently procered, or that it was for any reason invalid. On the contrary, the defendant relies on it, and asserts that the plaintiff cannot recover because of a failure of performance on the part of his assignor. In order that it shall clearly appear in what respect it is claimed the contractor has failed to perform in such substantial respect as to prevent a recovery in any sum whatever, it is desirable in this connection to call attention to the situation of the contract, and the parties to it, at the time of the trial. Nearly four years before that time the officers named by the defendant in its contract made the certificates, which, by its terms, were to determine the final completion of the contract,and the right of the contractor to receive the compensation within 30 days thereafter, the commissioner of public works specially certified that the contract had been completed according to its terms, and was satisfactory. About that time the defendant entered into and has since continued in possession of the street. It should be further observed that the defendant does not claim that the certificate made by the engineer, surveyor, and superintendent of street improvements overstates the quantity of materials of any kind therein certified; nor is it claimed that this plaintiff has recovered judgment for excavations made, or work of any kind done, which was not in fact performed. In other words, it is not disputed that plaintiff's assignor actually removed all the material and did all the work for which he has...
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