Buffalo Elec. Co. v. State

• Decision Date: 23 February 1961
• Docket Number: No. 32217,32217
• Citation: 212 N.Y.S.2d 269,27 Misc.2d 527
• Parties: BUFFALO ELECTRIC CO., Inc., Claimant, v. STATE of New York. Claim
• Court: New York Court of Claims

Page 269

212 N.Y.S.2d 269

27 Misc.2d 527

BUFFALO ELECTRIC CO., Inc., Claimant, v. STATE of New York.

Claim No. 32217.

Court of Claims of New York.

Feb. 23, 1961.

William E. Miller, Lockport, Warner F. Thompson, Lockport, of counsel, for claimant.

Louis J. Lefkowitz, Atty. Gen., James L. Magavern, Asst. Atty. Gen., of counsel, for the State.

BERNARD RYAN, Presiding Judge.

Confronted with a release clause in claimant's contract with the State of New York, in essence no different from that examined, considered and upheld in several instances both by the Court of Appeals and by other Courts, and applying what we believed to be decisive law to the fact that claimant had signed the contract with full knowledge that it contained such a clause; to the further fact that claimant had accepted final payment for the work done by it pursuant to its contract, we dismissed claimant's suit. Buffalo Electric Co., Inc. v. State, 1956, 4 Misc.2d 172, 158 N.Y.S.2d 265. In doing so, we were aware, too, of the fact that claimant's president by an endorsement on the check intended to, and believed that he did, reserve for claimant its right to proceed to recover for additional costs for work allegedly performed by it. Such additional costs, if proved, were incurred for something 'done or furnished for or relating to the work,' or for some 'act of omission' on the State or its agents, to borrow the phraseology of the contract document. That fact cannot be controverted.

There were other facts before us; clauses of the contract, letters from the State architect to the claimant, letters from the claimant to the State architect. These are quoted in pertinent part in our opinion reported as above cited. Our dismissal was effected by the granting of the Attorney General's motion that, under the contract, the acceptance of the final payment by the claimant operated as a release of the claim it now asserts which is for damages based upon delays and interferences and for extra work. That motion was not one for summary judgment as was the motion in Fredburn Construction Corporation v. City of New York, 1939, 280 N.Y . 402, 21 N.E.2d 370, but was granted after the development upon a trial of the facts hereinabove reviewed. Indeed, this Court, recognizing the doctrine of the Fredburn case, not only permitted claimant full opportunity to develop the facts during an extended trial but, a long time after its completion, permitted a reopening and received in evidence many documents then presented.

Upon appeal the case was remitted. Buffalo Electric Co., Inc. v. State of New York, 1959, 9 A.D.2d 372, 194 N.Y.S.2d 72, 74. The direction to this Court was:

'to decide the underlying question of fact as to whether both parties intended and understood that the check was to be a 'last payment' in full of all claims.'

The direction to us to make appropriate findings gave the parties to the suit the option of resting upon the proof already in the record, or of presenting additional proof. No additional proof has been offered by either party. Our search for intent must be made in the field already explored in our previous opinion. See Mace v. State, 1960, 12 App.Div.2d 702, 208 N.Y.S.2d 756.

At the outset we note that, although there is a comment in the Per Curiam opinion of the Fourth Department to the effect that, absent a consideration, a unilateral mistake by the one who releases may vitiate a release, the direction to us is that we should resolve the question of the intent and understanding of both parties. Consideration there was. It was mutually given in the original contract of which the release clause was a part. Claimant's president could not alter that contract by unilateral action. Granted that it was his intent to do so, who expressed the intent of the other party--the State of New York? Shall we say that the State architect did it? His letters, in essential part, are quoted in our previous opinion. He consistently held to a position in strict adherence to the terms of the contract. He had, in fact, no authority to do otherwise. He had, in law, no authority to make a new contract for the State of New York unless the decisions in Cauldwell-Wingate Co. v. City of New York, 1935, 269 N.Y. 539, 199 N.E. 524, and Nicholas v. City of New York, 1944, 293 N.Y. 704, 56 N.E.2d 587, and Oakhill Contracting Co. v. City of New York, 1941, 262 App.Div. 530, 30 N.Y.S.2d 567, 570 are all to be overruled and set aside. In the words of the last cited authority: 'What was said in such transactions was overridden by what was done in accepting payment.' Cf. Raleigh Associates, Inc . v. Henry, 1951, 302 N.Y. 467, 473, 99 N.E.2d 289, 291, Wilson Sullivan Co., Inc. v. International Paper Makers Realty Corporation, 1954, 307 N.Y. 20, 25, 119 N.E.2d 573, 574.

The heart of the matter lies in the much earlier case of MacArthur Bros. Co. v. City of New York, 1917, 177 App.Div. 725, 164 N.Y.S. 753, 754, affirmed 224 N.Y. 629, 121 N.E. 877. That was an appeal from a directed verdict for the defendant. For ready reference we quote from the opinion as follows:

'At the time that this final payment was accepted by the plaintiffs the plaintiffs executed a general release to the city. In that general release, however, was a provision which assumed to reserve to the plaintiffs the right to make claim against the city for the matters included in this action.

'The contention of the plaintiffs is that by reason of the fact that this reservation was made in this general release, which was filed at the time of the acceptance of the last payment, that such acceptance cannot be deemed to be in full or cannot operate as a release of the claims here sought to be enforced. In support of this contention the Gearty Case, Gearty v. Mayor, etc., of City of New York, 171 N.Y. 61, 66, 63 N.E. 804, is cited. In that case a general release was executed which was required by the comptroller in order to obtain the moneys actually due and payable by the terms of the contract, and it was held that the contractor was not bound by that release. But in that case there was no provision in the contract between the city and the contractor as to what should be the effect of the acceptance of that final payment or that such acceptance should in any way operate to release all other claims. This provision in the contract in the case at bar clearly distinguishes this case from the case cited. The comptroller of the city had no power to modify this contract or to waive any of its provision. The release was not called for by the contract. His acceptance of a general release with this reservation could in no way operate to change the effect which would otherwise follow from the acceptance of this final payment.

'In Allen v. City of Oneida, 210 N.Y. 496, 505, 104 N.E. 920, it was provided that the payment of the final amount due should release the city from any and all claims under the contract. It was there held that the plaintiffs, having accepted this payment, could not thereafter repudiate the covenants entered into by them and recover for the alleged quantity of work in excess of the amount shown by the final estimate. This authority would seem to be conclusive...