People ex rel. Graves v. Sohmer

• Decision Date: 04 March 1913
• Parties: PEOPLE ex rel. GRAVES v. SOHMER, State Comptroller.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 450

101 N.E. 164

PEOPLE ex rel. GRAVES

v.SOHMER, State Comptroller.

Court of Appeals of New York.

March 4, 1913.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding by the People, on the relation of Edward M. Graves, against William Sohmer, as State Comptroller. From an order of the Appellate Division (152 App. Div. 581,137 N. Y. Supp. 384), reversing an order directing the issuance of a peremptory writ of mandamus, relator appeals. Order reversed.

See, also, 153 App. Div. 933,138 N. Y. Supp. 1136.

Appeal by the relator from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered November 22, 1912, reversing, solely on a question of law, an order of the Special Term, which directed the issue of a peremptory mandamus to the defendant commanding him to draw and deliver to the relator a warrant on the treasurer of the state of New York for the payment of $50,131.70.

May 26, 1910, the relator and the state contracted, under the authority of chapter 147 of the Laws of 1903, known as the Barge Canal Act, and the amendatory acts, that the relator should do specified items of work and furnish specified items of materials in the improvement of the Champlain Canal, in accordance with the plans and specifications forming part of the contract. The prices fixed by the contract aggregated $767,467. The contract reserved to the state, in accordance with the provision of the statute (L. 1903, c. 147, §6), ‘the right until the final completion and acceptance of the work, to make such additions to or deductions from such work or changes in the plans and specifications covering the work, as may be necessary. * * *’ Under this provision two alterations were made in the manner provided, the first of which is immaterial here; the other, made December 13, 1911, is the source of this litigation. It eliminated from the contract all the work remaining unfinished. It stated, as the explanation, that the performance of the work eliminated would interfere with the then existing navigation on the Champlain Canal and ‘the completion of this contract must necessarily be delayed for an indefinite period. In view of this fact, the contractor will be relieved by the terms of this alteration from the completion of the work by eliminating what remains to be done at the following localities [naming them]. The proposed changes in the plans and specifications will decrease the cost of the work under this contract to the state $252,798.04, and will require the following adjustment of quantities [naming them].’ The state delivered to the relator the alteration order with a notice as follows: ‘The superintendent of public works, the state engineer and the canal board, having consented to and approved of this alteration, in accordance with the terms of section 6 of chapter 147 of the Laws of 1903, and its amendments, a copy of which consent and approval is hereto attached, you are hereby ordered and directed to progress the work in compliance with the changes in said plans and specifications which are made a part hereof’-and on December 27, 1911, a supplementary agreement was made between the relator and the state fixing the prices for the work to be done and material to be used in or by reason of new items appearing in the alteration order. The alteration conformed to the relevant provisions of the statute and the contract, and the canal board assented to it. On January 22, 1912, the relator had furnished all the materials and performed all the work in accordance with the requirements of the contract as changed, and on that date the state engineer, under and in conformity with his statutory and contractual authority and duty, certified to the superintendent of public works that the work and materials called for by the contract and by the alteration orders ‘had been well, faithfully and fully performed and furnished by the contractor and in all respects strictly in accordance with the terms of said contract,’ and on January 27, 1912, the state engineer and the superintendent of public works, under and in conformity with their statutory authority, accepted and approved the work, and duly certified that they had approved of the work embraced in the contract and supplemental alterations to it, and found such work had been completed pursuant to the provisions thereof, and recommended the final payment for it, and that the sum of $50,131.70 was a balance due and owing the relator. Their certificate was duly approved by the resolution of the canal board adopted January 31, 1912.

The Barge Canal Law (Laws 1903, c. 147, §§ 9, 10) provides:

‘Sec. 9. The superintendent of public works may, from time to time, upon the certificate of the state engineer, pay to the contractor or contractors a sum not exceeding ninety per centum of the value of the work performed, and such certificate of the state engineer must state the amount of work performed and its total value, but in all cases not less than ten per centum of the estimate thus certified must be retained until the contract is completed and approved by the state engineer and the superintendent of public works.

‘Sec. 10. All measurements, inspections and estimates shall be made by the state engineer and the engineers and inspectors appointed by him. The superintendent of public works may, in the performance of the duties devolving upon him by this act, rely upon the certificates of the state engineer and his assistants as to the amount, character and quality of the work done and material furnished.’

Section 13 provides that the moneys to be expended to carry out the purposes of the act shall be ‘paid by the treasurer on the warrant of the comptroller, after due audit by him, upon the presentation of the draft of the superintendent of public works to the order of the contractor if for construction work. * * *’

Pursuant to the certificate of completion and approval of the state engineer and the superintendent of public works and the contract and statute, the superintendent of public works drew his draft upon the respondent to the order of the relator for the sum of $50,131.70, which together with relator's receipt for that sum in the prescribed form was by the relator on February 21, 1912, duly presented to the respondent for audit, and demand made that he draw his warrant on the state treasurer therefor. The respondent refused to audit the draft and draw the warrant. He requested two deputy comptrollers to investigate the alterations to the contract. They made an extended report to him, unverified by their oaths, in which they stated that as to certain parts of the work eliminated the reasons stated for the elimination did not exist; that the amount of excavation eliminated, by the estimate of the local engineer, was 271,000 yards, of which 128,000 yards was rock; that the contract called for the payment of 52 cents a yard for all material excavated with rock and earth, and they ‘were informed by men of experience that it cost the contractor from 11 cents to 15 cents to take out the material which has been removed, and that a...