
    John Brady, App’lt, v. The Mayor, etc., of New York, Resp’t. Bernard Brady, App’lt, v. The Same, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed May 18,1887.)
    
    1. New York (city of)—Contract—Order setting aside judgment and ALLOWING DEFENDANT TO ANSWER—CONSTRUCTION OF.
    By the terms of the contract the contractor was entitled to demand from the city a certain percentage of the contract value of work that should he certified by the city surveyor to have been done from time to time. An action was brought by the contractor for such percentage under a certificate so made. The answer admitted that the work had been done as averred in the complaint, but averred the existence of certain facts upon which it claimed that the plaintiff was not the lowest bidder for the work, and that the contract was fraudulent and void. Upon trial the plaintiff had a verdict and entered judgment thereon. This was upon motion vacated, and leave given to the defendant to serve an answer proposed, thereby excluding the portions setting up the defense of fraud either actual or constructive in the making or inception of the contract. Beld,_ that this exception included a defense in the proposed answer that the plaintiff had not been the lowest bidder for the work.
    3. Same—Defenses excluded by.
    
      Held, that it was the intention of the order not to allow any defense to be set up anew which had been tried in the action with knowledge of the relevant facts.
    3. Contract—Prima facie evidence of performance under.
    
      Held, that the certificate of the city surveyor was under the contract prima facie proof that the work had been done as therein stated.
    4. New trial—What grounds insufficient.
    The affidavits on a motion for a new trial being accepted as disclosing preparation for a fraudulent classification of work done under the contract: Held, that as it did not appear that the city surveyor was deceived by it and misled in making his certificate, a new trial should not be granted.
    Appeals by plaintiffs from orders granting motions for new trials.
    
      L. Laflin Kellogg, for appl’ts; Boscoe Conhling and Arthur H. Masten, for resp’ts.
   Sedgwick, J.

These two actions involve the rights of the parties under one contract, made by the plaintiff in the first action and the mayor, etc., of New York.

The contract was for regulating and grading Ninety-fifth street, from Tenth avenue to Riverside Drive. It provided for the excavation of rock at one-quarter of a cent for each yard, and of earth at eight dollars for each yard.

By the contract, the contractor was entitled to demand from the city seventy per cent of t the contract value of work that should be certified by the city surveyor to have been done from time to time. The first action was brought by the contractor for this seventy per cent, under a certificate made by the city surveyor on March 12, 1884. The original answer admitted that the work had been done, as averred in the complaint, but it averred the existence of certain facts, upon which it claimed that the plaintiff was not the lowest bidder for the work, and also that the contract was fraudulent and void. The issue was brought to trial. The plaintiff had a verdict for the amount claimed by him, and judgment was entered in February, 1885.

In September, 1886, the motion below was made. It resulted in an order that the judgment be vacated, with leave to the defendant to serve the answer proposed by the motion, “except that it shall not contain those portions thereof, setting up the defense of fraud, either actual or constructive in the making or inception of the contract sued on.” This exception undoubtedly includes the defense in the proposed answer of the plaintiff not having been the lowest bidder. It was the intention of the order not to allow any defense to be set up anew which had been tried in the action with knowledge of the relevant facts. The new defense allowed is contained in the following averments : “The defendants admit that a certain certificate was made and signed by the city surveyor employed in the work, which purported to state the respective quantities of earth and rock excavated by the plaintiff, but they allege, upon information and belief, that the quantities therein stated were false and inaccurate by reason of the fact that the plaintiff had performed the work of excavation in an improper and fraudulent manner in violation of the provisions of the contract, whereby materials that should have been classified and measured as rock, were, in fact, classified and measured as earth, to the pecuniary advantage of the plaintiff.”

The defendants claim that under this proposed defense “the issue is, whether or not there have been removed, in accordance with the terms of the contract, the relative quantities of earth and rock set forth in the surveyor’s certificate in question in the action.”

It is further claimed for the defendants that the affidavits show that since the trial testimony has been discovered which sustains the defense.

Leaving aside questions as to laches and as to the proposed answer as a pleading, the test most favorable to the defendants would be to ascertain if the affidavits set out facts which, if testified to by credible witnesses, would uphold a verdict against the plaintiff, rendered on the ground that these facts showed that the number of yards of rock and of earth actually excavated were, in the case of rock, greater, and, in the case of earth, less, than those stated by the certificate.

The affidavits have been examined with particularity. After giving to the affidavits for defendants all the weight that can in reason be claimed for them, my judgment is that they do not show what quantities, respectively of earth and of rock had been excavated before the certificate of the surveyor was made. The certificate was, under the contract, prima facie proof, that the plaintiff had excavated, as the certificate declared. The affidavits do not falsify the certificate. It, therefore, does not appear that a new trial would have a result different from the result of the trial had.

Under ordinary circumstances it would be proper to sustain the correctness of this result by making a resume of the affidavits. This is not done now for the reason that the claim for final payments is to be tried.. It is right to each side that the new trial should not be embarrassed by the declarations of this court as to testimony in its present sitting, which should have, perhaps, another construction, due to the absence of some fact that now appears, or to the presence of some fact that is not shown now.

It may be granted that the affidavits disclose some preparation for a fraudulent classification. The result of this preparation does not now appear. It does not appear that the city surveyor was deceived by it, and did not make' a correct certificate in spite of it.

In my opinion a new trial should not be granted for the purpose of experiment or excepting upon a case which justifies a conclusion, that, when presented upon a new trial, another result will be produced unless countervailing facts shall appear.

The order in the first case should be reversed, with ten dollars costs. Tne merits of the second case áre the same as of the first, and in it there should be a reversal of the order, with ten dollars costs.

Truax and Dugro, JJ., concur.  