William Higgins & Sons, Inc. v. State

• Decision Date: 31 October 1967
• Docket Number: No. 39928,39928
• Parties: , 231 N.E.2d 285 WILLIAM HIGGINS & SONS, INC., Appellant, v. STATE of New York, Respondent. Claim
• Court: New York Court of Appeals Court of Appeals

Page 697

284 N.Y.S.2d 697

20 N.Y.2d 425, 231 N.E.2d 285

WILLIAM HIGGINS & SONS, INC., Appellant, v. STATE of New York, Respondent.

Claim No. 39928.

Court of Appeals of New York.

Oct. 31, 1967.

Edward D. Siemer, Buffalo, for appellant.

Louis J. Lefkowitz, Atty. Gen. (John B. Poersch, Schenectady, and Ruth Lessler Toch, Albany, of counsel), for respondent.

BURKE, Judge.

This claim for moneys due arises from a dispute concerning a contract entered into between the claimant and the New York State Department of Public Works.

When a contractor such as the claimant enters into a competitive bidding for State work, he receives three basic documents on which he bases his bid. These are the plans for the work proposed, a proposal form prepared by the State and a printed book of general specifications applicable to all State work. Bids submitted by a contractor to the State must be on the State's proposal form showing unit price for each item and the ultimate lump sum resulting from the multiplication of the estimate of the number of units times the unit price bid.

The work under the present contract was completed by the claimant and accepted by the State on November 6, 1961. In February, 1962, a check in the amount of $36,276.22, representing the final payment due claimant under the contract, was sent to him by the State. Payment was refused. Claimant instituted the present action, seeking the final payment due under the contract, as well as six additional items, based upon the contract. Although the State challenged all these items in the Court of Claims, it has subsequently conceded that three of the five adverse rulings rendered by that court were correct.

The State appealed to the Appellate Division from the award of two of the claims, an allowance for Portland cement and an allowance for temporary sheet piling. The State also appealed an award of interest on the severed claim for the final installment due under the contract, a claim on which judgment had already been entered. The Appellate Division, 27 A.D.2d 638, 275 N.Y.S.2d 682, reversed the Court of Claims on all three points. The present appeal was initiated by claimant.

The contract expressly provided that any excavation for footing outside the neat lines must be replaced with Class 1 concrete, Item 20, at the contractor's expense. It is obvious that the Appellate Division was correct in holding that the claimant was not entitled to payment for the claim made to cover the 320.7 barrels of Portland cement incorporated in the concrete which replaced the rock claimant excavated beyond the neat lines of the footings.

The Appellate Division was likewise correct in finding that the claimant is not entitled to payment for 6,900 square feet of temporary steel sheet piling. The estimated quantity of sheet piling set forth in the contract was 12,000 square feet. Pursuant to approved field changes, the quantity was increased to 13,109 square feet. Under the clear provision of the specifications, claimant was entitled to payment for sheet piling 'for only the area or location indicated on the plans and not exceeding the quantity shown in the estimate or as indicated on an approved field change.' Claimant was fully paid for all steel piling placed in its planned position. The claim before us is being...