
    John Sullivan et al., App’lts, v. The Prest., etc., of the Village of Sing Sing, Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 28, 1890.)
    
    Municipal corporations—Contract—Rule as to quantities stated in SPECIFICATIONS.
    Where public work is bid upon by contractors on statements specifying the approximate estimate of the quantities of material required, but notifying contractors that they must take such steps as they may deem necess .ry to verify the quantities, all work of a general character provided for in the specifications, even though the amount of it may have been considerably in excess of the estimated quantities, comes within the work to be done at the co-,tract prices.
    Appeal from a judgment of the general term of the supreme court, entered on an order affirming a judgment at circuit.
    
      Smith Lent, for app’lts; John Gibney, for resp’ts.
    
      
       Affirming 38 Hun, 642, mem.
      
    
   Parker, J.

Prior to June 8, 1882, the defendants determined to construct a bridge over Sing Sing Kill on Central avenue in the village of Sing Sing. In pursuance thereof civil engineers employed for that purpose prepared plans and specifications for the required work. Bids were solicited which resulted in the acceptance of plaintiffs’ proposal, which was followed by the formal execution of a contract for the construction of a bridge between these parties on the date above mentioned; the specifications, furnished the contractors as a basis for their proposals to do the work, being made a part thereof. The specifications under the head of “ Quantities ” contained the following:

“ The following is an approximate estimate of the quantities of material required in the foregoing work:

500 cubic yards earth excavation.

150 u rock excavation.

4600 1 '1 “ embankment.

200 « brick masonry. 190 u masonry protection walk

"Note. The above quantities are approximate o; but are considered sufficiently accurate for the purpose of basing a proposal. Contractors, however, will take such steps as they may deem necessary to verify the above quantities, as the board of trustees do not hold themselves absolutely bound by them.” According to the plans shown, the average excavation to earth rock for the east abutment was a little over two and one-half feet, and, for the west abutment, four and one-half feet; while the actual average excavation made was ten feet under each abutment. So that instead of 500 cubic yards of earth excavation, there was 2936 1-3 yards; instead of 150 cubic yards of rock excavation there was 1245 2-3 yards; instead of 4600 cubic yards of embankment, there was 6563 yards ; and in lieu of 190 yards of masonry protection wall, there was 537 yards.

The contention of the plaintiffs in this action is that the plans which were made a part of the contract having shown the base lines for both abutments, and all the wing walls, that for the additional depth of excavation which necessarily was made at greater expense to them, as the depth increased, was extra work, within the intent and meaning of the following clause of the contract; “it is also mutually agreed that all necessary extra work or additional material not specified in the bill of quantities, which may be found necessary to be done or furnished in the further prosecution of the work, in the opinion of the said superintendent, shall be agreed upon and the price therefor established by said superintendent and contractor, with the consent of the parties of the second part.”

While on the part of the defendants it is insisted that the estimates made were not intended to be accurate, and that the contract considered in its entirety does not admit of a different construction.

The case was first tried before a referee who construed the contract agreeably to plaintiffs’ contention, and directed judgment to be entered in their favor for $7,867.32. On appeal to the general term the judgment was reversed, and the re-trial resulted in a judgment for $5,350.61, that being the amount to which plaintiffs were entitled for all the work done at the prices named in the contract, with interest *

Stating appellants' position still more briefly, it is that all work in excess of the quantities named in the specifications must be held to be extra work, although it be of the same general kind and character as that designated under the heading “quantities.” This claim is founded upon that clause in the contract, already alluded to, which provides “ that all necessary extra work or additional material not specified in the bill of quantities * * * shall be agreed upon and the price therefor established by said superintendent and contractor, with the consent of the parties.” The construction contended for by the appellants, therefore, assumes that, notwithstanding the specifications provide that the quantities of material estimated are only approximate, nevertheless the clause quoted referring to necessary extra work not specified in the bill of quantities limits the work to be done at the prices named in the contract to the actual quantities specified. The mere statement of the proposition demonstrates that the construction contended for by the appellants is altogether too narrow and not in accord with the spirit and intent of the instrument. It would seem that the provisions in the contract relating to necessary extra work, or additional material not specified in the bill of quantities, was intended to be more comprehensive than contended for by the appellants, because it necessarily embraces not merely the number of cubic yards specified under that heading, but also all that is stated under the word “quantities.” That it compretends of necessity, as asserted, that the quantities named are merely estimated, for it is not only provided that the quantities constitute simply an estimate intended as a basis for proposal, but the further precaution is taken of stipulating in that connection that the board of trustees do not hold themselves absolutely bound by the quantities and that contractors will take such steps as they may deem necessary to verify them. Without, therefore, considering the other portions of the contract, it seems that a reasonable construction requires the holding that all work of a general character provided for in the specifications, even though the amount of it may have been considerably in excess of the estimated quantities, comes within the work to be done at the contract prices.

There are, however, other portions of the contract which considered in connection with that already referred to makes it clear that the construction given by the general term must prevail.

The contract provides that the parties of the first part (these plaintiffs) “ agree to build and construct a culvert, arch, bridge, retaining walls and all necessary work thereon over Sing Sing Kill on Central avenue in the village of Sing Sing, * * * and to furnish at their own cost all the labor and all the materials therefor, * * * and to furnish all the materials and to construct the said bridge in all respects in accordance with the plans and specifications for the same made by Benjamin F. Church, civil engineer, hereto annexed and which forms a part of this contract.” And further, that “ in consideration of the foregoing covenants the said parties of the second part agree to pay the said parties of the first part, * * * upon the certificate of the superintendent or engineer that the contract, specifications and conditions have all been fully complied with, at the rate of the following sums, viz.: earth excavation at the rate of thirty-five cents per cubic yard; rock excavation at the rate of $1.50 ; embankment at the rate of forty cents; brick masonry and arch at the rate of eight dollars; stone masonry and arch at the rate of $7.50; protection wall at the rate of $5.50; masonry and protection wall at the rate of $6.50.”

The specifications, which are made a part of the contract, also provide that 11 the work to be done is to construct a culvert, twenty-five feet span, with retaining walls ; to make the necessary excavation; to provide and put in place the necessary embankment ; to construct catch basins, drains; to set and provide the necessary curbing; to provide and set iron railings; to do all the necessary work and provide the necessary material to macadamize the roadway over said culvert between the pavement now existing, and to do such other work as may be necessary to carry out the -work according to the spirit of the accompanying specification and the annexed plans, which are to be considered a part of this specification.”

The specifications further provide that the parties of the first part will “ make the necessary earth excavation for abutments of arch, culvert and retaining walls down to rock.” So that it appears by the express terms of the contract that plaintiffs were to do all the work necessary to construct this bridge, and that as a part of it they are required to make the necessary earth excavations for abutments, arch, culvert and retaining .walls down to rock, and that they were to do it at the rate per cubic yard provided in that portion of the contract already quoted.

The foregoing quotations from the contract demonstrate the correctness of the holding of the general term that the work which the plaintiffs claim to be entitled to compensation for as extra work was not in fact such, but instead was work for which they were entitled to receive compensation according to the prices named in the contract.

There are still other clauses in the specifications which point* out quite clearly that it was the intention of the parties in making this contract not to regard the quantities named as furnishing anything more than plaintiffs’ estimate of the amount of excavation which would likely be required to be made. In addition to the assertion made in connection with the list of quantities, that it constitutes but an approximate estimate, is the further warning to bidders that “ contractors, however, will take such steps as they may deem necessary to verify the above quantities, as the board of trustees do not hold themselves absolutely bound by them,” and the specifications still further provide, “ all loss or damage arising out of the nature of the work to be done under this specification or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, from the action of the elements, or from incumbrances on the line of the work, shall be sustained by the contractor.”

The judgment should be affirmed.

All concur, except Haight, J., absent.  