Hotchkiss v. City of Binghamton

• Decision Date: 05 May 1914
• Citation: 211 N.Y. 279,105 N.E. 410
• Parties: HOTCHKISS v. CITY OF BINGHAMTON.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 279

105 N.E. 410

HOTCHKISS

v.CITY OF BINGHAMTON.

Court of Appeals of New York.

May 5, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Mark S. Hotchkiss against the City of Binghamton. From a judgment of the Appellate Division affirming a judgment for plaintiff (148 App. Div. 533,132 N. Y. Supp. 933), defendant appeals. Reversed, and new trial granted.

John Marcy, Jr., of Binghamton, for appellant.

Hinman, Howard & Kattell, of Binghamton, for respondent.

MILLER, J.

The plaintiff constructs cement sidewalks. The defendant's charter requires property owners to build and maintain walks in front of their premises. It also provides:

‘In case any sidewalks shall be paved or curbed, by the owner, with stone, or any other material other than wood, approved by the commissioner of public works, and such walk or curb being built for the first time, one-half the cost of such paving or curbing, exclusive of the cost of grading shall, subject to the limitations in the next section provided, be paid by the city, but in no case shall the entire cost of such walk exceed two dollars per square yard for the purpose of fixing the amount to be paid by the city; and before any such payment shall be paid by the city, the city engineer shall furnish to the commissioner of public works a certificate that said walk or curb is laid or set upon the established grade and line as given by him and is of such proper materials as shall have been authorized to be used by the city for such purposes. Before any walks shall be laid or curbs set, under the provisions of this section, application shall be made to the commissioner of public works by the owner, for permission to construct such walk or curb, and the commissioner shall examine into the necessity therefor before granting a permit for such construction, and in case he deems such construction at that time unnecessary, he may withhold such permit.’ Laws 1907, chapter 751, § 178.

The defendant prepared a blank form of application and permit containing specifications for stone and cement walks. By direction of its commissioner of public works the following provision was stamped in red ink on the top of the first page of all blanks given out, viz.:

‘This permit is granted upon the express condition that the entire cost of the sidewalk shall not exceed ninety cents per square yard for five foot wide sidewalk and one dollar per square yard for six foot wide sidewalk, for the purpose of fixing the amount to be paid by the city.’

The plaintiff procured blanks thus stamped and took them to him assignors, two property owners, to be signed. His attention was called by the latter to the rubber stamp provision, but he said the city could pay $2 per square yard under the charter. He made a contract with said owners to construct walks in front of their premises for 12 cents per square foot, and, having done the work, obtained assignments of the owners' claims against the defendant for the half which it was to pay Claims were presented to the city comptroller, the defendant's auditing officer, who allowded them at 10 cents a square foot. The question involved in this action is whether the rubber stamp provision was effectual to limit the defendant's liability. The walks in question had a so-called ‘granite finish.’ The specifications attached...