
    Kathryne S. Marston, as Executrix of John D. Marston, Deceased, Appellant, v. The City of New York, Respondent.
    
      Marston v. City of New York, 171 App. Div. 947, affirmed.
    (Argued June 4, 1918;
    decided July 12, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 4, 1916, affirming a judgment in favor of defendant entered upon a verdict directed by the court in an action on contract. Plaintiff sued to recover $9,659.26, on the theory that she was entitled to be paid for 9,958 square yards of asphalt paving at the rate of ninety-seven cents a square yard. She alleged that the contract, made between the Uvalde Asphalt Paving Company and the city, of January 30, 1911, provided that the contractor should receive compensation, at the rate of ninety-seven cents' a square yard, for all asphalt pavement laid by it; that it laid 272,892.1 square yards of pavement for which, with other work, it was entitled to receive $266,799.14; .that it was only paid $257,139.87 and that the chief engineer of the bureau of highways certified to the comptroller, for payment, 262,934.1 square yards, instead of the 272,892.1 square yards which were actually laid. The refusal to certify for payment the 9,958 square yards in dispute is alleged to have been “ arbitrary and erroneous and (to) constitute a fraud upon the plaintiff and a breach of the said contract.” The answer, after denying the material allegations of the complaint, excepting that $257,139.87 had been paid, set forth as a first defense payment, and as a second defense that the final certificate was binding upon the plaintiff.
    
      R. Floyd Clarke and James F. McKinney for appellant.
    
      William P. Burr, Corporation Counsel (Terence Farley, John F. Collins and William A. Walling of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Collin, Cuddeback, Hogan and Cardozo, JJ. Not sitting: McLaughlin, J.  