City of New York v. Paoli

• Decision Date: 25 April 1911
• Citation: 94 N.E. 1077,202 N.Y. 18
• Parties: CITY OF NEW YORK v. PAOLI et al.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 18

94 N.E. 1077

CITY OF NEW YORK

v.PAOLI et al.

Court of Appeals of New York.

April 25, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the City of New York against Ralph Delli Paoli and another. From a judgment of the Appellate Division (136 App. Div . 939,121 N. Y. Supp. 1127) affirming a judgment for plaintiff, defendants appeal. Affirmed.

The action was brought by the city to recover upon a bond of the defendants, which was executed to secure the performance by the defendant Delli Paoli of a contract with the city, and which was required to be furnished. The contract related to the right to pick over refuse matter at ‘dumps' established by the street-cleaning department. The department advertised for proposals for bids ‘for loading and trimming deck scows and other vessels of the department of street cleaning, and for the privilege of sorting and picking over and appropriating certain of the refuse at the dumps of the said department in the borough of Manhattan.’ The advertisement stated the terms and conditions with which bidders were required to comply and specified the situation of the ‘dumps.’ In February, 1908, the contract in question was made, and Delli Paoli therein agreed to pay the plaintiff the sum of $1,802.35, weekly, in advance, during the continuance of the contract, the period of which was fixed at a year of 52 weeks, beginning on February 11, 1908. It contained this provision: That Delli Paoli ‘shall have the privilege of picking over all refuse at the said dumps, including paper, rags, wood and metal objects, except bones, fat or other refuse of similar organic nature, as these materials are already disposed of by an existing contract, and shall have the right to appropriate to his own use and behoof the said materials.’ He was required to provide the labor necessary to sort the materials and to remove the ashes of the furnace on carts of the department, whenever rubbish was hauled direct to an incinerator; to comply with the laws, state and federal, relating to the work, and to faithfully perform the work, and he was forbidden to assign, or otherwise dispose of, the contract, without the written consent of the commissioner. It was provided that, it the contract should be abandoned, the city might procure it to be performed, so far as the contractor had failed to perform it, ‘and in such case the city shall have power to charge to the contractor the amount of loss suffered by the city .’‘In case the price paid to the city shall be less than would have been payable under this contract, if the same had been completed by the contractor, then the contractor shall pay to the city the amount of such decrease in price, and in case such price shall be greater * * * then the contractor shall forfeit all claim to the difference.’ The advertisement and proposal for bids were made a part of the contract, as were, also, certain specifications annexed, which specified certain ‘dumps' by the same description as in the advertisement for proposals, gave the commissioner the right to change their location, or to increase their number by not more than two, and imposed various obligations relating to the methods of performing the work. The trial was had before a judge, without a jury, and findings were made by the court. It was found that the contract was made between the parties after due advertisement by the city, and that it was duly approved and ratified by the proper municipal authorities. It was found that Delli Paoli made the agreed weekly payments upon the contract to April 6, 1908, when he abandoned the contract and made no further payments; that efforts were made by the city to procure the performance of the work contracted for, during the rest of the year, through other contracts, and that there resulted a deficiency on the contract of upwards of $63,000. Judgment was therefore directed for the sum of $5,000, the amount of the bond given by the defendants, with interest, and the judgment, thereupon entered, has been affirmed by the Appellate Division in the First Department...