In re Freel

• Decision Date: 14 January 1896
• Citation: 42 N.E. 586,148 N.Y. 165
• Parties: In re FREEL.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 165

42 N.E. 586

In re FREEL.

Court of Appeals of New York.

Jan. 14, 1896.

Appeal from supreme court, general term, Second department.

Application by Edward Freel for a writ of mandamus requiring the comptroller to approve the relator's claim, and to make and sign a warrant for its payment. From an order made by the general term (35 N. Y. Supp. 59) affirming an order of the special term directing a peremptory writ of mandamus to issue, the comptroller appeals. Affirmed.

Albert G. McDonald, for appellant.

B. F. Tracy, for respondent.

MARTIN, J.

This is an appeal by the comptroller of the city of Brooklyn from an order made by the general term of the Second department affirming an order of the special term which directed that a peremptory mandamus issue, requiring the comptroller to approve of the relator's claim, and to make and sign a warrant for its payment. On the 16th of December, 1889, an agreement was entered into between the city of Brooklyn and the relator, by the provisions of which the latter was to furnish certain specified materials and perform certain designated labor, for which he was to receive the compensation provided for in the agreement. A reading of the entire contract between the parties renders it obvious that the contract was not that the relator should complete any particular structure, as such, but that he should furnish certain materials and perform certain labor in connection with the construction of the extension of the aqueduct and waterworks of the city of Brooklyn, for which he was to be paid an agreed price per foot, yard, thousand, or ton, as the case might be. The work was to be performed and the materials furnished under the direction and control of the defendant's engineer and commissioner of city works. Whether, when completed, the structure would answer the purpose for which it was intended, was no part of the contract on the part of the relator. If he furnished the materials and performed the labor specified in accordance with the terms of the contract, it was a compliance with it upon his part. The contract between the parties contained a provision that if any faults or defects became apparent within the period of six months from the completion of the work, requiring repairs, the contractor should make such repairs, or, in case of his omission to do so, they were to be made at the expense of the contractor, and the amount deducted from a portion of the contract price which was retained for that purpose. It is to be observed that this test does not relate to the sufficiency of the reservoir, but only to faults or defects in the work and materials performed and furnished by the contractor. Nor did the acceptance of the work, or the payment of the remainder of the contract price, depend upon or await the result of the test, as the contract clearly provided that the repairs, if any were required, should, if not made by the relator, be paid for from the 8 per cent. retained by the city. The contract also contained the following provision: ‘To prevent all disputes and litigation, it is further agreed by and between the parties to this contract that the engineer shall in all cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof, and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive upon said contractor; and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the party of the second part to receive any money under this agreement.’ It likewise provided that the engineer should, once a month, make estimates of the amount of work done and materials furnished, and of the...