Horgan v. Mayor, Etc., of City of New York
| Citation | 55 N.E. 204,160 N.Y. 516 |
| Parties | HORGAN v. MAYOR, ETC., OF CITY OF NEW YORK. |
| Decision Date | 21 November 1899 |
| Court | New York Court of Appeals |
Appeal from supreme court, appellate division, First department.
Action by William G. Horgan against the mayor, etc., of New York. From a judgment dismissing the complaint, affirmed by the appellate division (47 N. Y. Supp. 580), plaintiff appeals. Reversed.
Charles W. Dayton, for appellant.
John Whalen, Corp. Counsel (Theodore Connoly, of counsel), for respondent.
The plaintiff on the 14th day of January, 1893, entered into a contract in writing with the city of New York to furnish and provide all the necessary materials and labor, and excavate, remove, and dispose of all silt, sediment, and other materials deposited in the bottom of the pond near Fifty-Ninth street and Fifth and Sixth avenues, and construct a concrete bottom over same. This contract was to be completed by June 1, 1893. The plaintiff seeks to recover in this action for extra work under the contract, and for moneys alleged to be due him on account of improper measurements by the engineer of the material excavated. The extra work constitutes the first item, and the additional claim is set forth in two separate charges. The learned appellate division held that the plaintiff had, by a general release given by him to the city on the 24th of September, 1894, released all claim except such as he might have, if any, for extra work not covered by the contract. We are of the same opinion, and shall consider this case only as to the claim for extra work.
The sheet of water known as the ‘Pond’ is a small lake in Central Park, located near Fifty-Ninth street, and covers an area of some six acres. The pond had an outlet consisting of a circular gate 20 inches in diameter, resting on the bottom, and connecting by pipe with one of the city sewers. There was also an overflow basin about 25 feet from the gate, and 5 or 6 feet higher, which also led to one of the city sewers. The specifications embodied in the contract define what burdens the plaintiff assumed in the premises. Subdivision 1 provides that plaintiff shall furnish ‘all labor and materials required for conducting the flow of water and draining off the water from the bottom during the prosecution of the work.’ Subdivision 2 states that plaintiff shall furnish ‘all labor and materials required for conducting the flow of water through or across the area of the pond, or any portion thereof, and all pumping or bailing or other work required. Subdivision 5 requires the plaintiff to provide ‘all labor and materials required for conducting the flow of water through or across the area of the pond to the outlet, or for draining water from any portion of the area, and all pumping or bailing required for the proper prosecution of the work during its progress and until its completion.’ Subdivision 33 reads as follows: ‘All loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from incumbrances on the line of the work, or from any act or omission on the part of the contractor, or any person or agent employed by him, not authorized by this agreement, shall be sustained by said contractor.’ In the blank form of proposals for estimates under which the plaintiff made his bid is this provision: ‘Bidders must satisfy themselves by personal examination of the location of the proposed work, and by such other means as they may prefer, as to the accuracy of the foregoing engineer's estimate, and shall not at any time after the submission of an estimate dispute or complain of such statement or estimate, nor assert that there was any misunderstanding in regard to the nature or amount of the work to be done.’ The provisions we have quoted are those involved in the plaintiff's claim for extra work. It was proved at the trial that the plaintiff made the personal examination of the location of the proposed work as required. Shortly after the contract was executed the plaintiff requested the proper city authorities to draw off the water from the pond, and thereupon the circular gate, 20 inches in diameter, resting upon the bottom, as already described, was opened, and the water was drawn down to a depth of 14 inches, when the outlet pipe ceased to work. An examination disclosed that the pipe or sewer was very seriously obstructed, and, unless the same was cleared out, no further water could be drawn from the pond. The engineer insisted that it was the duty of the plaintiff, under his contract, to pump out the water remaining in the pond into the overflow pipe, or...
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