
    Nicholas Simermeyer and John H. Parry, Appellants, v. The Mayor, Aldermen and Commonalty of the City of New York. Respondent.
    
      New York city — a city job “ abandoned by the contractor ” — meaning of § 64 of the Consolidation Act—■when a contract to do the unfinished work may be let without advertisement.
    
    A contract for the building of an engine house for the city of Few York, awarded to one Duffy after competition, he being the lowest bidder, provided that if the work should be abandoned, or if at any time the Are commissioners should be of opinion that the work was unnecessarily delayed, or that the contractor willfully violated any of the conditions or covenants of the contract, or made default in certain other ways, the commissioners might elect to notify Duffy and complete the work themselves by contract or otherwise, and charge the expense to Duffy.
    
      . Duffy’s work under the contract having been discontinued for some unexplained reason, the plaintiffs agreed under a contract (which was not publicly advertised and let) with the fire commissioners to complete the work for $1,078.16, which was less than the sum payable under the Duffy contract.
    
      Held, that as it did not appear that Duffy abandoned the work, but rather that the commissioners undertook to complete it as his agents by virtue of the stipulations contained in the contract, the city was not relieved from liability upon the contract made with the plaintiffs, by section 64 of the Consolidation Act, providing that where work involved the expenditure of more than $1,000, it must be let by contract and that “in case any work shall be abandoned by any contractor, it shall be readvertised and relet by the head of the appropriate department;”
    That whatever might be the1 general interpretation of the section of the Consoli- . dation Act in question, it did not apply to a case like the present one, where the claim asserted by the plaintiffs arose under a clause of Duffy’s contract, and where the work done was. really and substantially the same work advertised for and let to Duffy, and which the city was, by its contract with Duffy, authorized to finish upon his account, in case the fire commissioners'considered it necessary to complete the contract as the agents of Duffy.
    Appeal by the plaintiffs, Nicholas Simermeyer and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office.of the clerk of the county of New York on the 24th day of February, 1897, upon the decision of the court rendered after a trial at the'New York Trial Term, before the court without a jury, dismissing the plaintiffs’ complaint.
    
      Robert J. Robeson, for the appellants.
    
      Chase Mellen, for the respondent.
   Patterson, J.:

It appears by the evidence in this case that a contract was made between the defendant and one Duffy for thé construction of a fire engine house in the city of New York, for which the defendant agreed to pay the sum of $23,229. The contract was awarded to Duffy after competition and as the lowest bidder, and, among other things, contained a provision and agreement that if the work should be abandoned or if at any time the commissioners of the fire department should be of opinion that the work was unnecessarily delayed or that the contractor willfully violated any of the conditions or covenants of the contract, or made default in certain other ways, ■ then the commissioners might elect to notify Duffy to discontinue the work, and should have power to place on such work by contract or otherwise such and so many persons as they might deem advisable, to carry out or complete it or such part of it as might remain incomplete, and to use such materials as they might find on the work, or to procure or cause to be procured by contract or otherwise all other materials for the completion of the same; to charge the exjDense of the labor and materials to Duffy, the expense so. charged to be deducted and paid by the city out of such moneys as might then be due or might at any time thereafter become due to the contractor, and in case the expense was less than the sum which would have been payable under the contract if the same had been completed by Duffy, he was to forfeit the difference, and in case the expense should exceed that sum he was to pay the amount of such excess to the city. It seems that Duffy’s work under the contract was discontinued for some unexplained reason, and that on the 26th of February, 1895, these plaintiffs, on the employment of the commissioners of the fire department, agreed to complete the work. The only evidence in the case as to how, or under what circumstances, or why Duffy was removed from the work, is in the tes-' timony of the witness Parry, who states that he learned that the contract had been taken away from Duffy, and that the fire department was going to finish the house, and that thereupon he called at the headquarters of the fire department, saw the commissioners and signed a memorandum by which the plaintiffs agreed to do the work and furnish materials required to complete the work specified in the contract, executed on May 10, 1894, by Thomas A. Duffy, with the fire department for erecting and finishing and completing a building for the engine company, such work to be done for the sum of $1,078.16. The plaintiffs proceeded to complete the work and the engine house was finished and apparently accepted by the city, and the work was so finished upon a saving to the city of some $500 on the Duffy contract. The defense which prevailed in the court below was that the contract with the plaintiff being for- $78.16 in excess of $1,000, was unauthorized, and that the fire commissioners acted beyond the scope of their authority in making a contract involving the outlay of more than $1,000 without public advertisement and letting, and that, therefore, the city is not liable. This contention proceeds upon the provisions of section 64 of the Consolidation Act (Laws of 1882, chap. 410), which enacts, in substance, that when work is necessary to complete or perfect any particular job, or to supply materials needful for such completion, and the several parts of the work or supply shall altogether involve the expenditure of more than $1,000], the same shall be by contract, and, “in case any work shall be abandoned by any contractor, it shall be readvertised and relet by the head of the appropriate department in the manner in this section provided.”

There can be no doubt in this case that the work done and materials supplied by these plaintiffs was pursuant to the memorandum of February 26, 1895, which constitutes'a contract. The only question is whether the provision last quoted of section 64 of the Consolidation Act applies to this particular case. There is nothing whatever in the evidence to show that the contract was abandoned by the contractor ; all that the evidence seems to indicate is that the commissioners of the fire department, for some reason 'which is not disclosed, undertook to complete, themselves, the work for the contractor, and as his agent, under .that stipulation of the contract which authorized the department so to do, if the work unnecessarily should be delayed or the contractor willfully violated any of the conditions and covenants of the contract, or was executing it in bad faith, so that the work could not be done according to its terms, and to apply the contract compensation to "the joayment of the expense incurred in completing the work. In this case these plaintiffs were' merely employed to complete the work specified in Duffy’s contract at a cost less than the amount stipulated to be paid to Duffy. So far as appears it was not upon an abandonment of the contract by Duffy, but was under a contract made on his account, the expense of which was to be borne by him, and what was done by the fire commissioners was merely to complete, within the limit of cost of Duffy’s contract, that work which they deemed it expedient to finish under Duffy’s contract.

The construction of the Consolidation Act, contended for by the respondent in this ¡garticular case, would work a forfeiture against these plaintiffs, and that construction should be avoided. Whatever may be the correct general interpretation of the provision of the Consolidation Act-referred to, we do not think it applies to such a case as this, where the claim asserted by these plaintiffs arises under a clause of Duffy’s contract, and where the work done is really and substantially the same work advertised for and let to Duffy, and which the city was authorized by its contract to finish on Duffy’s account, in case the fire department required, and considered it necessary to complete that contract itself, as the agent of Duffy.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Rumsey, Williams and Parker, JJ., concurred; Van Brunt, P. J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.  