
    The City of New York, Plaintiff, v. Interstate Paving Company and Others, Defendants.
    First Department,
    June 28, 1912.
    Municipal corporations — paving contract — construction—duty to keep pavement in repair after acceptance of part of work.
    Where a contract for paving a city street, divided into an easterly and westerly driveway by a grass plot, provided that the contractor was to maintain the pavement in good condition for the period of five years “ from the date of the completion and acceptance thereof,” and the easterly driveway was accepted by the city two years before the westerly driveway was finished, the delay in finishing the latter driveway resulting from causes beyond the control of the contractor, the contractor was only bound to keep the easterly driveway in repair for five years from the date of its completion and acceptance by the city.
    
      Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Adrian T. Kiernan, for the plaintiff.
    
      E. D. Lee, for the defendants.
   Dowling, J.:

The defendant Interstate Paving Company, which for the sake of brevity will hereafter be called the contractor, on October 13, 1905, entered into a contract in writing with the city of New York whereby it agreed, for the sum of $225,000, to regulate and pave with asphalt block, White Plains road from Morris street to the city line, in the borough of the Bronx, city of New York, and to maintain the said pavement in good condition, to the satisfaction of the president of said borough for the period of five years “ from the date of the completion and acceptance thereof.” The distance so to be paved was about three miles. There was a railroad company operating a double-track electric surface railway over White Plains road for the distance in question. White Plains road is divided into an easterly and a westerly driveway, with a grass plot or parkway in the center thereof. The contractor entered upon the easterly driveway and closed the same from Gun Hill road, and by July 1, 1906, had fully completed its work thereon from Gun Hill road to Two Hundred and Twenty-seventh street, according to the terms and provisions of the contract. It then, in further compliance with the contract, covered the completed pavement with sand and barricaded the same against any use by the public, and continued its further work to the north thereof. Meantime independent contractors, Malloy and Eexford, were regulating and grading the westerly driveway. The sand placed upon the surface of the street was blown about, to the annoyance of the adjacent residents, causing complaint to city officials. About September 1, 1906, the engineer in charge of the work, acting on behalf of the borough president, directed the contractor to clear away the sand from the completed driveway and to remove the barricade, stating that the street cleaning department would not clean the street until it had been accepted by the city. With this direction the contractor complied, and on September 8, 1906, the engineer of highways of the borough, representing plaintiff and in charge of the work, advised the district superintendent of street cleaning that the portion of White Plains road in question was in condition for acceptance by that department, and requested him to take charge of same, whereupon he entered thereupon, caused it to be cleaned, and has continued to keep it cleaned. At the same time the easterly roadway referred to was thereupon thrown open to the public, and was thereafter and ever since used by the public in general for all street purposes.” It further appears that White Plains road is one of the principal thoroughfares leading northerly to the city line, and that the traffic thereon is heavy.

As the result of the construction of a sewer and the required moving of its tracks by the Union Railway Company (both causes beyond the control of the contractor) the final completion of the entire contract was not had until some two years after September 8, 1906. The contractor duly performed its requirement of maintenance, and kept the pavement of the easterly roadway to Two Hundred and Twenty-seventh street in proper repair until September 8, 1911. Thereafter notice was given it to make certain repairs, which it refused to do upon the ground' that the period of maintenance had expired. The question involved in this controversy is whether it is Correct in that contention, plaintiff claiming that the contractor was bound to keep the pavement for the whole extent of the contract distance in repair for a period of five years from the date of the completion of all the work. We do not think the contract can reasonably be so construed. . As has been stated, the requirement is that the pavement shall be kept in good condition to the satisfaction of the borough president for the period of five years from the date of completion and acceptance thereof. When the portion of the easterly roadway from Gun Hill road to Two Hundred and Twenty-seventh street was sanded and inclosed it was concededly fully completed in all respects according to the terms of the contract. The city was under no compulsion to accept a part of the work; it could have waited for the completion of the whole extent of paving. But it chose, in the exercise of its-care for the public interest, to take possession of the finished portion, accept it and exercise complete control over its restoration to public use. The second element of acceptance was then supplied, and the period of maintenance began to ran from that date, viz., September 8, 1906, expiring September 8, 1911

Judgment is, therefore, directed for the defendants, with costs. .

Ingraham, P. J., McLaughlin, Scott and Miller, JJ., concurred.

Judgment directed for defendants,-with costs. Order to be settled on notice.  