McCann v. City of Albany

• Decision Date: 18 April 1899
• Citation: 158 N.Y. 634,53 N.E. 673
• Parties: McCANN v. CITY OF ALBANY.
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 634

53 N.E. 673

McCANN

v.CITY OF ALBANY.

Court of Appeals of New York.

April 18, 1899.

Appeal from supreme court, appellate division, Third department.

Action by William J. McCann against the city of Albany. From a judgment for plaintiff, defendant appealed to the appellate division, which affirmed the judgment (42 N. Y. Supp. 94), and defendant again appeals. Affirmed.

John A. Delehanty, for appellant.

Edwin Countryman, for respondent.

PARKER, C. J.

In October, 1884, one Keenan entered into a contract with the defendant to construct a sewer, and began work upon it; but after a short time, for reasons that are of no moment upon this review, he refused to go on under his contract, and steps were thereafter regularly and duly taken, with the result that a contract was entered into between the city and this plaintiff for the construction of the sewer. The ordinance authorizing the making of the contract, among other things, provided that nothing therein contained should ‘be held to create any liability on the part of the city of Albany to pay for the expense of the work and improvement therein authorized to be done, or any part thereof, except to the extent that such expense should be collected by the city of Albany from assessments levied therefor upon the houses and lots, vacant lots and franchises intended to be benefited by such work and improvement, according to law.’ The contract contained the following provision: ‘Payment for the abovementioned work is not to be required or to be due until the same shall have been fully completed according to the intent and meaning of the agreement, and until the lapse of thirty days after the apportionment and assessment of the expense of the same shall have been approved and confirmed by the board of contract and apportionment of said city, according to the statute in such case made and provided, and until the same shall have been collected by the chamberlain from said assessments.’ The plaintiff contracted to finish the work on or before the 1st day of July, 1886, and gave a bond, in the penal sum of $25,000, conditioned for the faithful performance of the contract. He failed to complete the work by the 1st day of July, 1886, but the time of performance was extended on his application from time to time, by the board of contract and apportionment, until on or about the 19th day of January, 1888. On that date he made application for a still further extension, but the board declined to grant it, unless the contractor and his sureties should enter into a written agreement requiring payment by the contractor of the sum of $50 a day as liquidated damages for each and every day the full and complete performance of the work should be delayed beyond May 1, 1888. The conditions were accepted, and the agreement executed, but the work was not fully completed on the 1st day of May, 1888, although the sewer was nearly constructed at that time, only a small portion at the western extremity being unfinished; and it continued in that state until about the 14th day of May, by the direction of the street commissioner and the city engineer, in order to permit the construction of an approach or outlet to the mouth or entrance thereof. While the work of construction proper was fully completed, on the 14th day of May, the defendant insisted that it was the plaintiff's duty, under the contract, to clean the earth, gravel, and rubbish out of the sewer. The plaintiff claimed that he had taken the stone, earth, and rubbish out of the sewer as fast as he completed it, and insisted that that was all the cleaning he was required to do; that it was not his duty, under the contract, to take out of the sewer material that had accumulated therein after the city had begun to make use of it. After an extended controversy between the plaintiff and the municipal officers having charge of the construction, the plaintiff did enter upon the work of cleaning the sewer, and the cleaning was completed about 138 days after the 1st day of May. When ...