
    H. S. Kerbaugh, Incorporated, Respondent, v. The City of New York, Appellant.
    
      Kerbaugh, Inc.p v. City of New York, 177 App. Div. 907, affirmed.
    (Argued March 2, 1920;
    decided March 16, 1920.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 6, 1917, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was brought to recover a balance shown to be due by the final certificate signed by the engineer in charge for work done under a contract between the plaintiff’s assignor and the city of New York for the construction of portions of the Esopus division of the Catskill aqueduct in Ulster county. The answer set up four defenses, in the last of which the defendant attacked the certificate of the engineer on the ground that it allowed for work not done and payment which was not authorized by the contract. On the trial the answer was amended by consent, by adding an allegation to the fourth defense mentioned, that the engineer misconstrued the terms of the contract, in that he extended certain lines for payment for excavation and for refill contrary to the provisions thereof,. and allowed and certified for payment certain quantities of concrete, contrary to the provisions of the contract.
    
      William P. Burr, Corporation Counsel (JohnF. O’Brien, Charles J. Nehrbas and John F. Collins of counsel), for appellant.
    
      Franklin Nevius and Alfred C. Petté for respondent.'
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane and Elkus, JJ. Dissenting: Chase and Hogan, JJ.  