
    Charles Hart, Appellant, v. The City of Brooklyn, Respondent.
    
      Contract for excavating the bed of a pond ■—right of the engineer to direct as to the separation and disposition of the excavated material —■ expend testimony as to marks on the plans.
    
    The specifications referred to in a contract for the excavation of the bed of a pond and the construction of a dam and the banks and slopes of the pond provided that the engineer should decide upon the quality and the character of the excavated material to be used at various places in forming the embankments of the conduit and supply pond, and the remainder was to be disposed of in grading and filling at such places as the engineer might designate.
    
      Held, that, under these provisions, the engineer was authorized to direct that the muck and the sand should be excavated separately, and that no muck should be placed in the embankments surrounding the pond.
    Where neither the contract nor the specifications give auv figures as to the extent of the improvement to be made, or anjr dimensions of its details, and in the plan, along the margins of the pond, appear colored stripes which civil engineers testify would indicate to contractors and engineers the width of the embankment, the interpretation of technical terms, marks or designs on the plans is properly the subject of expert testimony.
    Courts cannot take judicial notice of the meaning of these symbols in the absence of proof; and when such uncontradicted proof is given by competent witnesses, courts are not at liberty to disregard it.
    
      Appeal by the plaintiff, Charles Hart, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 31st day of December, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term, as dismisses the complaint upon the merits as to the second cause of action therein stated.
    
      Albert E. Iamb, for the appellant.
    
      Almet F. Jenks, for the respondent.
   Cullen, J.:

The plaintiff entered into a contract with the defendant by which he was to excavate Newbridge pond on the line of defendant’s water supply, and construct the dam, banks and slopes of the pond. For this work he was to be paid not a gross sum, but certain specified prices for each item of work done, according to its quantity. For excavating the bed of the pond and the disposal of the material excavated, he was to receive thirty-two cents per cubic yard. The site of the Newbridge pond, before the commencement of the work, was a swamp or swale through which there ran two streams. The material to be excavated consisted principally of muck on t-lie surface, and sand or gravel beneath. The plan of the work provided not only for the excavation of the bed of the pond, but for the construction of banks along its margins. For his second cause of action the plaintiff complained that the defendant interfered with him in the prosecution of his work, and compelled him to excavate the muck and the sand or gravel separately, thus materially increasing the expense of the work. For this interference he claimed to recover damages.

It seems to me that the question presented by this case is an extremely narrow one. The specifications provided that the engineer sliotdd decide upon the quality and character of the excavated materials to be used at various places in forming the embankments of the conduit and supply pond, and the remainder was to be disposed of in grading and filling at such places as the engineer might designate, or, to use the technical term, was to be wasted. Under these provisions, it is unquestioned that the engineer of the defendant was empowered to direct that no muck should be placed in the embankments surrounding the pond. His direction given for this purpose, that the muck and the sand should be excavated separately, was, therefore, proper. The appellant does not deny this proposition. If this were all there were of the case, the decision below was correct.

But neither the contract proper nor the specifications gave any figures of the extent of the improvement to be made, or any dimensions of its details. To obtain these it was necessary to go to the plan. The plan prepared at the time of the execution of the contract between the parties represents the location and contour of the pond. The whole area is plotted into squares drawn to a scale. Along the margins of the pond are strips colored blue and included, within black lines. The width, though not given in figures, is easily ascertainable by a scale. After the contract was entered into, the defendant’s engineers furnished a new ground plan of the improvement. On this plan, also, is found .surrounding the pond a blue strip similar to the other, but about twice its width. It is the question of the width of the bank that creates the only real controversy in the case. It is very evident that the expense of excavation and filling would vary with the size and dimensions of the bank. If the height of the bank was increased, the cost per yard of carrying material there would also be increased. The profile of the .work shows the height of the bank, though only by scale. It is equally clear that increased width of the bank would cause an increased cost of excavation, for the bank was to be constructed only of selected material, thus involving- extra cost in the separation of material. The remainder of the excavation was to be wasted, which would, of course, be cheaper. The more that could-be wasted and the less put in the bank, the less would be the cost of the work per yard. If, therefore, the plan of the pond was altered after the plaintiff made his contract, the defendant is liable. Whether it was altered or not depends wholly on whether the blue strip on the plan represented the width of the bank. The plaintiff contends that it did; and unless that claim is correct, then no width of the bank is prescribed by the contract, and the matter was left solely to the discretion of the defendant’s engineer. On this question the learned court at Special Term found against the plaintiff, but I think the finding is without evidence to support it. The interpretation of technical terms, marks or designs is properly the subject of expert testimony. A witness for the plaintiff, Mr. McNamee, a civil engineer and. contractor of large experience, testified that the blue strip on the plan would indicate to contractors and to engineers the width of the embankment. Though several of defendant’s engineers were summoned as witnesses, not one contradicted this statement, and some seem almost to confirm it. The witness De Yerona testified that the horizontal projection of the bank on the first plan was forty feet, and on the second approximately twice as great. In the plans and drawings of engineers and architects, tlxe common custom of the profession has dictated that different materials used in structures shall be represented in different manners either of color or shape. Courts cannot take notice of the meaning of these symbols in the absence of proof ; but, equally, when uncontradicted proof is given by competent witnesses of the signification of such a symbol, courts are not at liberty to disregard it. On the evidence in this record, whatever the fact may really be, the defendant did change the plan of the work after it had contracted with the plaintiff for its performance. For any expense occasioned by the change, he was entitled to recover.

The .interlocutory judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Interlocutory judgment, so far as appealed from, reversed, and new trial granted, costs to abide the event.  