Summary
In Lentilhon (102 AD at 553), the First Department noted that there was no definitive representation of the quantity of material to be removed or the quantity that might be utilized for ground fill.
Summary of this case from A. Servidone v. StateOpinion
March, 1905.
L. Laflin Kellogg, for the plaintiff.
Terence Farley, for the defendant.
The plaintiff has been paid in full according to the contract. The object of this action is the recovery of damages for alleged breaches of the contract. The learned counsel for the city contends at the outset that the plaintiff has mistaken his remedy, and that the city is not liable inasmuch as the work was performed under a special act of the Legislature by which the city acted, so far as it acted at all, as the agent of the State. The special act is chapter 556 of the Laws of 1897.
Section 1 of the act recites that the reservoir site has been added to Bryant park, and it authorizes the department of public parks to remove the reservoir and to erect a library building upon the site, "in accordance with plans to be made and prepared by the trustees of the New York Public Library, Astor, Lenox and Tilden foundations, and to be approved by the board of estimate and apportionment." The section further recites that these libraries had been consolidated, and that the building was to be used as a public library and reading room by the consolidated corporation. Section 2 of the act provided that the contract, specifications and bonds for the faithful performance of the work and the furnishing of materials therefor should be prepared by the department of public parks, submitted to the board of estimate and apportionment for its approval, and approved "as to form" by the corporation counsel. Section 3 of the act authorized the board of estimate and apportionment to contract with the consolidated corporation for the use and occupation of the library building. Section 4 of the act, as amended by chapter 627 of the Laws of 1900, provides for defraying the expense of removing the reservoir and constructing the new library building by the issue and sale of consolidated stock of the city by the comptroller upon the authorization of the board of estimate and apportionment, the disbursements from the proceeds to be made upon vouchers certified by the department of public parks, and gives the board of estimate and apportionment discretion to fix the amount of stock to be issued.
In the view we take of the case it is unnecessary to decide whether this is, strictly speaking, a city contract upon which the city may be held liable in damages for a mistake on the part of any of the individuals, officers or agents connected with preparing the plan or specifications or the supervision of the work; but the fact that the work was required to be done according to a plan prepared by the trustees of the consolidated libraries is significant, and has a material bearing upon the points upon which it is sought to predicate liability of the city. It may be that the plaintiff was misled by this plan and that he has sustained damages in consequence thereof. It must be borne in mind, however, that the law requiring the letting of contracts for public improvements to the lowest responsible bidder may be readily evaded if contractors are to be permitted, without seeking a rescission of them, to obtain the fruits of the contracts by performance, and then secure extra compensation upon some theory of mistake such as is presented concerning the plan in the case at bar. The contractor in the circumstances was scarcely justified in relying upon the plan for quantities. There was no representation that it was made from an actual survey and in fact the letter published in the City Record which he had read rather indicated the contrary. Other parts of the work where the quantities were known or ascertainable were let by the cubic yard, while a gross bid was required for the entire work completed, and although the reasons therefor do not expressly appear they are readily to be inferred and were doubtless understood by the plaintiff. Some of the stone of the reservoir walls, suitable for use in the construction of the library building, was required to be prepared and stored. The contractor was required to do a large amount of filling, and it was contemplated that considerable of the other material would be thus utilized. There was, therefore, some difficulty in letting the contract upon any other basis. We are of opinion that there was no warranty or guaranty in law as to the correctness of the plan as a basis for ascertaining the quantity of material to be removed by the contractor. The plan was designed to indicate the location of the walls that were to be removed and the levels and extent of excavation and the levels to which hollows were to be filled; but we think it was not intended as a basis upon which bidders were to figure the quantities of material to be removed, and that the express provisions of the contract and specifications requiring the removal of the entire reservoir structure were controlling. ( Dean v. Mayor, 167 N.Y. 13.) Damages as for a breach of contract may be recovered for an erroneous direction of a representative of a municipality, authorized to give directions in the premises in superintending the execution of contract work, which are insisted upon and necessitate the performance of more work than the contract, properly interpreted, requires, and the contractor has an election either to refuse to proceed and recover upon a quantum meruit for the work already done or to continue under protest and recover the value of the extra work upon a quantum meruit as the measure of damages for the breach of contract. ( Mulholland v. Mayor, 113 N.Y. 631; Becker v. City of New York, 170 id. 219; Gearty v. Mayor, 171 id. 61; Dwyer v. Mayor, 77 App. Div. 227.) While damages may not ordinarily be recovered for the acts of an inspector in improperly rejecting materials and thus delaying the work ( Montgomery v. Mayor, 151 N.Y. 249), they may be recovered for unreasonable delay on the part of the party for whom the contract work is being done in permitting the contractor to proceed, or in performing conditions precedent to his duty to proceed, or for unreasonable interference with the contract work or with other contractors over whom control has been reserved. ( McMaster v. State of New York, 108 N.Y. 542; Curnan v. D. O.R.R. Co., 138 id. 480; Del Genovese v. Third Ave. R.R. Co., 13 App. Div. 412; Thilemann v. City of New York, 82 id. 136; Rogers v. City of New York, 71 id. 618; affd., 173 N.Y. 623. ) In those cases and only those, I think, where there is an express representation in a plan or specifications inserted for the purpose of showing bidders that something exists which will facilitate and render less expensive the performance of the work, a recovery may be had for the damages caused if it shall turn out that the representation is erroneous. ( Langley v. Rouss, 85 App. Div. 27; Horgan v. Mayor, 160 N.Y. 516; Becker v. City of New York, 176 id. 441.) In view of the provisions of the advertisement and of the contract and the nature of the work, the proper interpretation of the specifications, which contained no estimate of quantities, is that the contractor was called upon to examine the work and make such investigation as necessary to ascertain the quantities. The case falls within the general rule upon that subject which requires a contractor who interposes a gross bid for the entire performance of a given work to assume the risk as to the nature and quantity of the work to be performed, even though approximate estimates of the quantities which are materially wrong have been prepared by the public authorities for the guidance of bidders. ( Sullivan v. President, etc., of Village of Sing Sing, 122 N.Y. 389.)
We are also of opinion that there can be no recovery for the expense of pumping. The contractor bases his claim in this regard upon the fact that there is no provision in the specifications requiring him to do any pumping and that there is a provision in the specifications for contract No. 2 requiring the contractor for that work to do the necessary pumping. The pumping was incident to the work. I do not understand that the city was interested in the question of pumping so far as the same was performed by the plaintiff. The evidence indicates that it was for his own convenience in the performance of the work which he undertook. The other contract had not been let, and of course he was not entitled to rely upon any other contractor doing the work for him. There was no misrepresentation with respect to the sufficiency of the outlet. It is not pretended that the plan in that regard was inaccurate either as to the size or location of the outlet or sewer in Forty-second street into which it emptied. The outlet was open and unobstructed and it drained the water to the level of its bottom. In this respect the case is distinguishable from that of Horgan v. Mayor (supra), where the specifications clearly showed that it was contemplated that a park lake, the bottom of which was to be improved, was to be drained through a submerged outlet, and after the contract was let it was discovered that the outlet was so obstructed that it would not drain the lake above its level. The contractor was, therefore, permitted to recover for the extra expense of pumping down to the level of the outlet.
On the 26th of March, 1901, a contract known as contract No. 2 was let for other work incident to the construction of the new library. Some of the work which the plaintiff was required to do could not be performed until certain work was performed by the contractor with whom contract No. 2 was made. The only evidence of damages caused by delay was the evidence tending to show the extra cost on account of the delay caused by the obstruction of the Forty-second street exit and at the dump; and this evidence was confined to the period from the 23d day of April to the 13th day of September, 1901, all of which was after the letting of the second contract. For delay caused by the work thereunder by the express terms of the specifications the city was relieved from liability. If any of these damages were caused by the delay in furnishing working plans, as distinguished from the delay caused by the second contract, they have not been separated by the evidence. Even if the city would be liable for such damages for delay in furnishing the working plans, which is somewhat doubtful on the question of their being sufficiently proximate, and also in view of the provision of the specifications requiring the contractor to assume responsibility for all unforeseen difficulties encountered (See Mairs v. Mayor, 52 App. Div. 343; affd., 166 N.Y. 618; also Horgan v. Mayor, supra), no recovery can be had therefor owing to the failure to make specific proof.
It follows, therefore, that the plaintiff failed to establish a cause of action upon any of the counts, and his exceptions should be overruled, with costs, and judgment directed in favor of the defendant for a dismissal of the complaint, with costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and HATCH, JJ., concurred.
Exceptions overruled, with costs, and judgment ordered dismissing complaint, with costs.