
    Ann Mulholland, App’lt, v. The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Contract—Action nor compensation.
    In an action brought by the assignee of a contract for compensation for work, labor and services performed thereunder, the questions having been resolved into whether the plaintiff was entitled to compensation for inspection fees beyond the time allowed and occasioned by the defendant in the contract, and as to whether a counter-claim for damages for failure in some respects to comply with the contract. Held, that if the contractor had excused delay in the prosecution of the work by proof that it was due to the fault of the defendant, the amount paid for the inspection fees during that time should be allowed the plaintiff.
    3. Verdict—On conflicting evidence—Will not be disturbed.
    
      Held that the verdict being such that it must be assumed that the delay was caused by the neglect of the plaintiff’s assignor and that verdict having been found upon conflicting evidence the appellate court could not interfere with it,
    3. Same—When court not justified in interfering with.
    
      Held, that the evidence of the counter-claim having been submitted to the jury and necessarily entered into their consideration, and the point having been fairly submitted to them the court would not be justified in interfering with their verdict.
    Appeal by the plaintiff from a judgment in her favor rendered upon the verdict of a jury at circuit and from an order denying the plaintiff’s motion for a new trial. The plaintiff by virtue of sundry assignments is the assignee of John Mulholland, who on the 9th of November, 1877, entered into a contract with the respondents for regulating and grading and setting curb and gutter stones, and flagging Sixty-sixth street from Eighth avenue to the Boulevard.
    The plaintiff claims in her complaint as a first cause of action that the engineer in charge of the work neglected to make proper surveys of the same and to give to her assignor the proper grades and levels; and that the said grades were changed, and that in consequence thereof her assignor was delayed in performing said work and that the same was not finally completed until December 4, 1884; that according to the prices named in the contract the value of said work is $13,808; and she alleges that the defendants at various dates have paid on account thereof the sum of $7,880.60, leaving a balance due by the defendant for the work executed as aforesaid of the sum of $5,927.89.
    
      As a second cause of action, it is alleged that the engineers appointed, and for the time being in charge of the work, were bound to mark the line of the grade to which the earth or rock upon the line of the same should be excavated : and that said engineers so carelessly and negligently conducted themselves that the defendant by and through one or more of them marked and designated erroneous hues of grade, and furnished erroneous levels; and that the plaintiff V'assignor was thereby put to great expense and suffered great loss and damage to at least the sum of $10,000.
    The answer of the defendant, after admitting the payment of $1,880.60, alleges that one Preston, as the assignee of W. B. Pitch, filed with the comptroller a written notice of claim against the plaintiff’s assignor, by which said Preston acquired a hen upon the moneys due to the plaintiff’s assignor in the sum of $2,029.10, with interest; that subsequently an action was begun to foreclose said lien, and that certain proceedings were had therein resulting in a settlement whereby said Preston agreed to receive the sum of $2,029.10, without interest; and that on the 9th of September, 1885, the comptroller paid the said sum to the said Preston as assignee. It is then averred that the plaintiff’s assignor assented to and requested the payment of said sum, and executed a release to the defendants for the amount thereof. The defendants further aver that the plaintiff’s assignor failed to complete his work within the time specified, to wit, within 300 days from the date of his contract, November 9th, 1811; and that by reason of his failure the defendants became liable to pay, and did pay under the provisions of the contract the sum of $3,642 for and on account of inspector’s wages, to wit, for a period of 1,214 days, for which said period over and above the time specified the said assignor of the plaintiff had failed to complete his said work.
    It appears that in 1880, the plaintiff’s assignor then being in default, the legislature passed an act providing that in all contracts for local improvements in the city of New York, thó time for completing the work thereunder in all cases where the time allowed by the contract for completing the same had not expired, should be extended sixty days ; and in all cases where the time had expired, the same should be extended for sixty days from the date of the passage of this act. (Laws of 1880, chapter 556.) Under this act the neglect of the plaintiff’s assignor to complete his work within the time specified in his contract was excused, and an extention of sixty days from the 10th of June, 1880, was thereby given to him; and it is from the 10th of August, 1880, that the computation of the inspectors wages charged to the plaintiff’s assignor has been made. The defendants also allege as a counter-claim, that in and by the surveyor’s certificate, the amount of work which had been don-1 by the plaintiff’s assignor it appeared that there had been 20,737' cubic yards of rock excavated, for which the plaintiff’s assignor was duly paid, whereas in point of fact the amount of rock actually excavated did not exceed 19,-737 cubic yards; and that the plaintiff’s assignor was paid on account thereof $333.30 in excess of the amount due for the work done under the contract.
    An additional answer was afterwards served by the defendants in which a further counter-claim was set up to the effect that the plaintiff’s assignor had neglected to remove the rock in said street to the sub-grade line, which is two feet below the established grade, to the aggregate amount of 1,000 cubic yards projecting above said sub-grade fine; and that to remove the same, and to make the street conform to the contract, would cost at least two dollars per yard, making an aggregate sum of $2,000, which said sum the defendant’s claimed to recover and set-off against the claim of the plaintiffs herein.
    
      L. Laflin Kellogg, for pl’ff and app’lt; E. H. Lacombe, counsel to the corporation; David J. Dean, for resp’t.
   Lawrence, J.

Upon the trial it was conceded that the plaintiff was chargeable with the sum of $2,029.10 paid to the assignee of Fitch as set up in the answer; and the principal questions arising in the case are, therefore, whether the plaintiff is entitled to any sums in addition to the contract price agreed upon, and whether there was evidence on the part of the defense sufficient to establish the first counter-claim, the court having directed that the second counter-claim set up in the defendants’ additional answer should be dismissed.

It is admitted by the defendants that the balance remaining due and certified by the engineer in charge of the work, after making the deductions claimed by the city, amounted to the sum of $256.70. But it is claimed by the appellant that the charge of $3,642 for inspection was wrongfully imposed by the defendants while the contract was delayed by the act of their engineer. And it is further claimed that the sum of $10,000 damages was caused by the act of the defendant in giving to the contractor wrong grades, which imposed upon him an immense increase of cost in doing the work, over and above contract price.

It does not seem to be disputed that the plaintiff’s assignor was paid under the terms of the contract for any additional labor and expense to which he was put in consequence of any error which may have been committed by the engineer, Leonard, in regard to the depth of the excavation. But the plaintiff contends that as'such excation cost more and was reasonably worth a price in excess of the contract price, the learned judge before whom the case was tried erred in excluding evidence upon the question as to the actual value of such additional excavation.

Upon turning to the contract it will be found that it contains the following provision:

And the said party of the second part hereby further agrees, that in case the grade of the street shall be changed during the progress of the work, or any other modification of the said work shall be ordered by the Commissioner of Public Works, that he will conform to the altered grade- or other modifications of the work at the prices specified herein, as far as they are applicable, and for any work, the price of which is not specified in this contract, the provisions herein contained in relation to extra work shall apply.

The contract further provides as follows:

“And the said party of the second part hereby further agrees, that in case any work is required to be done in order to carry out the provisions of .this agreement, which is not called for in the specifications, that he will go on and do the same without any claim for extra compensation therefor, unless ordered in writing by the commissioner of public works to do the same as extra work, and a price therefor agreed upon previously to its commencement.”

It is not claimed in this case that the work alleged to have been done by the contractor in consequence of the alleged error of Leonard, was ordered to be done by the commissioner of public works as extra work.

It seems to us, therefore, that the provision above referred to, that if the grade should be altered, or modifications of the work should be required, the work attendant thereupon should be performed at the prices specified in the contract for similar work, applies; and that as it is conceded that for such additional work the assignor of the plaintiff has been paid at the contract rate, no further claim can be made by the plaintiff upon the city.

It is contended on the part .of the respondents that under the contract 'no obligation rests upon the city to furnish grades to the contractor; and that when the plaintiffs-assignor had completed his work, it was the business of the engineer appointed by the commissioner of public works to-give to him a certificate of such completion; and in case of a refusal to give such certificate, if in point of fact the street was regulated according to the profile, the contractor would have been entitled to recover without a certificate, upon the ground that such refusal was unreasonable. Andl the cases of The Bowery National Bank v. The Mayor, etc. (63 N. Y., 337) and Bancker v. The Mayor, etc. (8 Hun, 409) are cited. It does not, however, seem to us necessary in this case to definitely determine the question whether under the contract the city was bound to furnish an engineer to give to the plaintiffs’ assignor the grade fine of the street. And our reasons are these: The learned justice before whom the case was tried, while holding that the city was under no obligation to furnish grades, distinctly charged the jury that if the city undertook the duty to furnish grades and said they would, and allowed the contractor to believe they would, then the contractor is excused for any delay arising because of the city’s failure to do that which they undertook to do and induced him to wait until they should. He also distinctly submitted to the jury the question whether the contractor could go on and complete this work without any grade lines at all until he came to the finishing of the work to arrange the line of the curb and decide what the subgrade should be.

He also charged the jury as follows: “It is for you to determine as to how far the contractor has excused the fact of the delay in the work. If he has been unable for all the time he has been unable to complete, by reason of the failure, or any failure of Mr. Leonard to furnish this information, if it was necessary for him to furnish it in order that he might go on with the work, for that amount the contractor in this case is entitled to any allowance upon this question of inspectors’ fees. Inspectors’ fees have been charged to him from the 10th of August, 1880, down, to the 4th of September, 1884. Upon an inspection of the inspectors’ books there seems to have been found that certain work was not done and that would account for the difference between the whole amount of working days between the 10th of August, 1880, and the 4th of September, 1884; but for every day that it was possible to do work the inspectors’ fees were charged, and the amount which was charged was 1214 days, amounting in all to $3,642. If Mr. Mulholland, the contractor, has excused the delay in the prosecution of this work, under the principles I have given, then, whatever amount he has excused, he is entitled to recover from the city on account of these inspectors’ fees. They are charged to him at the rate of three dollars a day, and he would be entitled to recover in addition to the $256.70, for just so many days as he is excused for the delay in the work, at three dollars a day.”

It seems to us that under the charge of the learned judge irrespective of the question whether the obligation rested upon the city to give grade lines to the contractor or not, the question was fairly submitted to the jury as to whether the delay in fulfilling the contract on the part of the plaintiffs’ assignor was due to the neglect of the defendant’s engineer, or to that of the contractor. It must be assumed from the verdict of the jury that the jury found that the delay was caused by the neglect of the plaintiffs assignor, and not by that .of the defendant’s engineer; and as the evidence is conflicting, under well-settled principles this court cannot interfere upon appeal. Beckwith v. N. Y. C. and H. R. R. Co., 64 Barb., 308.

The evidence in the case undoubtedly shows that the contractor before the passage of the act of 1880, hereinbefore referred to, was in default; and that even after that act he was not within the limit of time permitted to those who were in default, for the completion of their contracts. A work which was to have been completed within 300 days from November 9, 1877, was not completed until about .seven years after the execution of the contract. We do not think that the court should be astute to criticise the verdict of a jury in substance finding under such circumstances that the contractor is not entitled to relief.

We also agree with the counsel to the corporation that there was evidence on the part of the defense sufficient to establish the counter-claim for the price of 990 cubic yards of rock, which have been paid for in excess of the amount actually excavated; and that as this testimony was submitted to the jury, and must have entered into their consideration in arriving at the result which they reached, the court would not be justified in interfering with their verdict. The question as to that counter-claim was fairly submitted to the jury by the learned judge, and they must have understood the point which was presented to them.

Many exceptions were taken, during the progress of the trial, to the rulings of the court in regard to the admission and exclusion of evidence. We deem it sufficient to say that we have examined them all; and that in the view which we have taken of the general features of the case we are not prepared to hold that any of those rulings, even if erroneous, could have affected the result attained by the jury.

For these reasons we are of the opinion that the judgment of the court below should be affirmed.

Potter, J., concurs.  