Faber v. City of New York

• Decision Date: 08 January 1918
• Citation: 118 N.E. 609,222 N.Y. 255
• Parties: FABER v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

222 N.Y. 255

118 N.E. 609

FABER

v.CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 8, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Leander D. Faber as receiver, etc., of Patrick H. Flynn against the City of New York. From a judgment of the Appellate Division (177 App. Div. 906,163 N. Y. Supp. 1115), affirming a judgment of the trial court dismissing the complaint, plaintiff appeals. Reversed, and judgment for plaintiff directed.

Charles L. Craig, of New York City, for appellant.

Lamar Hardy, Corp. Counsel, of New York City (John F. O'Brien, of New York City, of counsel), for respondent.

ANDREWS, J.

On October 28, 1896, the commissioners of the new East River bridge entered into a contract with Patrick H. Flynn for constructing the foundations of the New York tower of the bridge. The contractor agreed to complete the work in accordance with certain plans and specifications. One of the plans so mentioned was No. 63, which showed details of the piers. The contractor was to receive for the completed work described in the contract and shown by the plans and specifications the sum of $367,000, such being in full for all labor and materials in case the excavation was carried down to the depth shown by such plans. The specifications state that the detailed plans accompany them and are complement and part thereof. Similar references are made to the plans in the advertisement for proposals and in the proposals themselves.

Taking these papers together, they seem to indicate that it was the understanding, both of the commissioners and of the contractor, that the excavation was designed to be carried down substantially to bedrock. The twentieth specification, for instance, provides that each caisson must be sunk to the depth shown on the plans, or to such depth as shall be required for a firm foundation for the towers. The bedrock is to be cleaned off for the whole area of the caisson. Unsound and unsuitable rock must be removed and rock of a sound and satisfactory character laid bare. If necessary the surface of the rock shall be stepred. Concrete is not to be begun until the rock surface has been examined and approved in writing by the engineer. The twenty-first specification provides for the mixing of the concrete used to fill the working chamber, and that it shall be placed in immediate contact with a clean sound bedrock. The sixty-fourth specification provides that bids are based upon depth of excavation indicated on the plans. The commissioners will hereafter direct the additional depth of excavation to be made into the rock. If excavation deeper than that shown on the plans is required, it is to be paid for at so much per cubic yard.

Another indication that this was the understanding is that the south caisson is represented on plan 63 as somewhat deeper than the north caisson. The only explanation of this discrepancy is that the solid bedrock lay at a lower level to the south than to the north.

More important than all, however, are the indications on plan 63 itself. There the rock surface is plainly indicated, and the caissons are sunk substantially to this surface.

Under such circumstances Mr. Flynn executed the contract in question. In the course of his work, however, it was discovered that through some error on the part of the engineers employed by the commission who had prepared plan 63, the bedrock was from 8 to 9 feet nearer the surface than represented upon the plan.

The caissons as designed by the engineer were somewhat larger than the stone foundations of the towers which rested upon them. As a result at the top there was a shoulder projecting some 5 feet. They were situated under water in the East River, and reached beyond the pierhead line. To avoid creating an obstacle to navigation, it was necessary, therefore, that the shoulder should be about 38 feet beneath the surface of mean high water. This was impossible, if, placing the bottom of the caisson on the rock surface as it actually existed, the height was still left the same as designed on the plan. Therefore, as the height of the caisson could not be shortened after the discovery was made so as to keep its top at the appropriate depth beneath the surface of the water, the contractor was compelled by the commissioners to excavate into the rock until the bottom of the caisson was the depth beneath the surface originally contemplated. This required the excavation of 2,274 cubic yards of solid rock, and the jury has found that the reasonable value of that work was $79,590.

[1] The action was tried upon the theory that a recovery was sought for a breach of contract on the ground that this work was not covered thereby or contemplated therein, and the question is whether, under the admitted facts, plan 63 constituted such a representation or warranty as to the position of the bedrock as to bind the city and render it liable for the great additional cost caused by the mistake. We have no doubt that it is such a representation. Clearly, the references to this plan contained in all the papers before us was sufficient to show that the contract was made by both parties upon the understanding and with the supposition that the bedrock was substantially as therein indicated. It would be wholly inequitable to hold that under such circumstances, where the contractor had no reasonable opportunity of discovering the truth, and where the other party had made the examination and asked for bids upon plans showing the results of such examination, the latter can be heard to say that it is not responsible, should those plans wholly misrepresent the facts....