
    JACOB VOORHIS, Jr., Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.
    Appeal from a judgment in favor of the plaintiff against the defendant,- entered on the report of a referee, for services in regulating and grading First avenue.
    The court was of opinion that that portion of the work done, for which this recovery was had, was not included in the work which, under the terms of the contract entered into between the parties, the plaintiff, was to perform, the excavation not being within the lines of the street; and that if it was incidental to such work pro-Tided for in the contract, that instrument expressly provided that it was to be done without additional compensation.
    
      Richard O’Gorman, for the appellant.
    
      John E. Develin, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment reversed and a new trial ordered, with costs to abide the event.  