Gearty v. Mayor
| Decision Date | 13 May 1902 |
| Citation | 63 N.E. 804,171 N.Y. 61 |
| Parties | GEARTY v. MAYOR, ETC., OF CITY OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, appellate division. First department.
Action by James A. Gearty against the mayor, aldermen, and commonalty of the city of New York. From a judgment of the appellate division (70 N. Y. Supp. 942) overruling plaintiff's exceptions, ordered heard in the first instance by the appellate division, and dismissing the complaint, plaintiff appeals. Reversed.
L. Laflin Kellogg and Alfred C. Petté, for appellant.
George L. Rives, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for respondent.
The plaintiff, on the 18th day of May, 1895, entered into a contract with the mayor, aldermen, and commonalty of the city of New York, to regulate, set curbstones,and pave with granite block pavement, with concrete foundation, the roadway or transverse road No. 4, crossing Centrial Park at Ninety-Seventh street from Fifth avenue to Central Park west (Eighth avenue). This is one of the underpass roads crossing Central Park from east to west. The complaint contains two causes of action: (1) To recover the sum of $440, alleged to have been unlawfully deducted for overtime; (2) to recover the sum of $10,000 as damages suffered by reason of certain work being unlawfully, and in breach of the contract, required to be done a second time.
It may be stated generally that the answer of the city insists that the deduction for overtime was properly made, and that the work required to be done a second time was exacted under the express terms of the contract entered into by the plaintiff with the city.
In setting forth his first cause of action, the plaintiff alleged, in substance, that he demanded of the department of public parks of the city of New York a certificate, in writing, containing the number of days' delay caused by any act or omission on the part of the plaintiff, as required under the contract, but that the same was unreasonably and in bad faith refused. This allegation is denied by the city. It is conceded that on the 25th day of June, 1896, the defendant paid to the plaintiff the sum of $12,396.23, as the total amount admitted by the city as due him under the contract as completed, excepting the amount retained as security for repairs. This left in the hands of the city the sum of $440, sued for in the first cause of action, for excess of inspection, 22 days at $20 a day, and amount retained as security for repairs. It also left unadjusted, as plaintiff claims, the value of the work referred to in the second cause of action. On receiving this amount the plaintiff gave to the city a receipt reading as follows: ‘Received at the office of the comptroller of the city of New York this 25th day of June, 1896, from Ashbel P. Fitch, comptroller, a warrant on the chamberlain for $12,396.23 in payment of the above account, which is in full for all claims and demands on this contract, excepting the amount retained as security for repairs.’ The plaintiff at the same time executed, under seal, a general release, which is exacted by the city from all contractors when receiving the last payment on a completed contract in accordance with the final certificate of the engineer of the department of public works. This instrument releases the city from all claims that the plaintiff has against it by reason of the contract in question on account of ‘any matter, cause, or thing whatsoever reserved or arising therefrom, from the beginning of the world to the day of the date of these presents, excepting $1,723.33 retained as repairing security; also excepting any legal claim which I may have under and in pursuance of the terms and conditions of the contract herein.’ It is the contention of the plaintiff that he was obliged to execute the receipt and release, under the rules of the comptroller's office, in order to collect what was admitted to be due him under the contract, and that the release does not bar this action, as it expressly excepts any legal claim which he has under and in pursuance of the terms and conditions of the contract. The city gave no evidence at the trial, the motion to dismiss the complaint being granted at the close of the plaintiff's case.
The plaintiff began work under this contract on notice from the city May 23, 1895, and continued without interruption until July, 1895, when a 70 per cent. certificate for work done was given him by the engineer of construction, which showed that a certain amount of work had been performed. The certificate further stated: ‘I certify that I have duly examined the above account and compared it with the contract, and that it is correct; that the work and materials mentioned above have been performed and delivered as required by the contract, and in a satisfactory manner; and that the sum of $7,751 is justly due.’ There was also given to the plaintiff at this time the certificate of the commissioners of the department of public parks, which reads as follows: ‘We hereby certify that we have examined the above account, and believe it to be correct; the prices charged are in accordance with the terms of the contract for regulating, setting curbstones, and paving with granite block pavement, with concrete foundation [describing roadway in detail]; and that such services as herein specified have been properly performed, and according to the certificates of the officers of this department duly appointed to supervise the same.’ Thereafter, and on the 24th day of July, 1895, the plaintiff received the following notice from the engineer of construction: The plaintiff made vigorous objection to tearing up the completed work, and insisted that it was properly done under the contract, as the previous certificates received from the engineer and commissioners of the department of public parks showed. Nevertheless, in view of the city's notice to stop work under the contract, except grading and curb-setting, until the work alleged to have been improperly done was remedied, the plaintiff proceeded to remove the completed work, and laid it over again, as required.
While the complaint contains two causes of action, it is obvious that the main and controlling question in this case is whether under the terms of the contract between the plaintiff and the city, the course pursued by the engineer of construction is justifiable. There is also the additional question whether any of the conceded acts of the plaintiff amount to an estoppel or waiver as to the causes of action now sought to be enforced.
The agreements which contractors are required to execute before entering upon city work are exceedingly stringent in their provisions against contractors and in favor of the municipality, and the former must determine, in the first instance, whether it is advisable to assume obligations that may prove very onerous. It remains only for the courts to decide what is a reasonable and fair construction of the contract as written, and determine the rights of the parties accordingly. The present contract covers 42 pages of the printed record, and contains a large number of provisions that are not necessary to be considered at the present time. The provisions material to this controversy will be now quoted or stated in substance: Subdivision ‘a,’ par. ‘d,’ provides, ‘All the materials furnished and all the work done, which, in the opinion of said commissioners of the department of public parks, shall not be in accordance with these specifications, shall be immediately removed, and other materials furnished and work done that shall be in accordance therewith.’ Subdivision ‘b’ provides, in substance, that the engineer appointed by the commissioners shall certify as to the work and materials done and furnished, and that the filing of the certificate with that department shall be a condition precedent to the right of the second party to payment. Subdivision ‘d’ provides that the contract shall be performed within fifty...
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