
    John A. Ferdinand, Pl'ff, v. The Mayor, etc., of New York, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    Municipal corporations—Contract—Re-letting.
    A contract made by the city with plaintiff’s assignor in 1865 contained a provision that under certain circumstances it could be declared abandoned, and the work re-let, the contractor to pay any excess of cost if let at a greater expense, and to be paid the difference if re-let at less cost. Under this provision it was declared abandoned in 1871. In 1877 the city made a contract for work on the same street with other parties, in pursuance of an ordinance of the common council, but the contract called for more work than the former one. Held, that the latter contract could not be said to be a re-letting of the former contract, and that plaintiff had no right to recover thereon.
    Exceptions heard in the first instance at the general term.
    
      John 0. Shaw, for pl’fE; Gratz Nathan, David J. Dean and Woolsey Garmalt, for def’ts.
   Brady, J.

On the 1st of September, 1865, the defendants contracted with one Jno. S. Masterson to regulate and grade Sixty-sixth street from Eighth avenue to Broadway. In or about 1871 that contract was declared to be abandoned. It contained a provision which authorized the street commissioner to declare the work abandoned, if in his opinion the contract was not being properly carried out, and to re-let the work at the expense of the contractor, the contractor to pay any excess of cost should the work be re-let at a greater expense, and to be paid the difference should the work be re-let at a less cost. In 1877 the defendants made a contract with one John Mulholland for regulating, grading and setting curb and gutter stones and flagging sidewalks in Sixty-sixth street from Eighth avenue to the Boulevard, but this was done, as alleged in the answer of the defendants, pursuant to an ordinance of the common council.

It will have been observed that Masterson’s contract was made in September, 1865, and it appeared upon the trial that he did no work subsequently to the year 1867, leaving his work unfinished. For the purpose of this opinion, it may be assumed that under the authorities cited, Philip Brady v. The Mayor, 44 Hun, 511; 9 N. Y. State Rep., 211; John Murphy et al. v. Buckman, 66 N. Y., 297; Taylor v. The Mayor, 83 id., 625, the appellant, assignee of the original contractor, Masterson, would be entitled to recover the difference between the sum which was to be paid him if his contract had been performed and the expense of completing it, if .less than the original contract price, if the defendants had elected to complete the contract as provided by its terms. This assumption may be indulged in, for the reason that there is no proof in the record that the contract subsequently made with Mulholland was the exercise of the power of the completion suggested. The allegation is that the contract of Mulholland’s was the result of an ordinance of the common council, approved the 2d of July, 1877, which was about twelve years after the contract made with Masterson, and which ordinance embraces more than was contemplated by the latter agreement, namely, setting curb and gutter stones and flagging sidewalks on Sixty-sixth street. When the counsel for the defendant moved to dismiss the complaint herein, his statement was that the plaintiff had not proved anything, except that there was a contract made and two or three assignments of it, and that Mr. Masterson had done some work at some time. A colloquy followed before the complaint was dismissed, but nothing more affected the proposition stated by the learned counsel for the defendant. Careful examination of the case fails to disclose any evidence of re-letting of the first contract, or an election to proceed under it and complete it. Tne letter, which was offered September 4, 1875, in no way affects this question, and it would be secondary evidence under any circumstances if Mr. Masterson was alive. He could be called upon to show that, notwithstanding the assignments of the contract, he had been so connected with it subsequently as to make it reasonably certain that which he did was done under the contract, and not under that subsequently made with Mr. Mulholland, pursuant to the ordinance of the common council, to which reference has been made.

For these reasons the exceptions should he overruled and the defendant have judgment upon the verdict, with costs.

Van Brunt, P. J., and Daniels, J., concur.  