
    O’Brien et al. v. Mayor, Etc., of City of New York.
    
      (Supreme Court, General Term, First Department.
    
    June 29, 1892.)
    1. Municipal Corporations—Powers op Aqueduct Commissioners.
    Laws 1883, c. 490, § 1, entitled “An act to .provide for a new aqueduct, etc., for New York city, ” authorizes the mayor, comptroller, and commissioner of public works of the city, and three persons named, to carry out the provisions of the act, and designates them as “Aqueduct Commissioners. ” Section 35 provides that the commissioner of public works shall prepare forms of contracts and specifications for the work and materials, such forms to be approved by the aqueduct commissioners and by the corporation counsel. Section 30 provides that the contracts, when awarded, shall be executed by the contractors on the one part, “and the said aqueduct commissioners, acting for the city of New York, on the other part,” and that the city shall in no event be subject to any greater liability than is expressed in such contracts, nor required to pay out any sum of money “greater than is stipulated in such contract, nor otherwise than in strict conformity to the terms thereof. ” The act imposed on the commissioners the duty also of supervising the work of construction, but provided that they might, if they chose, intrust such supervision to the city engineer. Meld that, as the commissioners were appointed by the state, they had no authority to bind the city, as its agents, further than was expressly provided by the act; and that where, under the contract awarded by them, payment was to be made on the certificate of the engineer as to the amount of the work and the value thereof, no recovery could be had for work done in reliance merely on the paroi assurance of the engineer that such was within the contract, but only for work done on his certificate. 15 N. Y. Supp. 530, affirmed.
    
      .2. Same—Contract for Construction—Compensation.
    The contract awarded under the act provided that the cross section of the tunnel excavation, hy which was meant the diameter of the tunnel plus the masonry lining, was to be such as the engineer might determine at any place, that the tunnel was to he excavated to the line of the cross section, and that no payment was to-be made for any excavating outside of the cross section, but all loose or shaky rock should be removed. The place from which the rock was removed was to be filled with masonry, and the question whether the masonry was to be paid for by the city was to depend on whether such looseness or shakiness had been caused by
    . want of proper care on the part of the contractor. The price per yard for excavating was to cover all expense due to loose or shaky rock. If, after the excavation had been made, the engineer should, on account of the nature of the earth, deem a greater thickness of masonry necessary, he might order an enlargement of the excavation, which was to be paid for at the price stipulated for the first excavation. Held, that there was no obligation to pay for -the excavation of any rock which might be made beyond the exterior line established by the engineer. 15 N. Y. Supp. 520, affirmed.
    8. Same—Extra Expenses.
    The contract declared that borings had been made to ascertain the nature of the strata through which the tunnel would have to be constructed, but provided that, should the character of the materials be found.to differ from that indicated by the borings, the contractor would still have no claim on that account against the city, that whenever the engineer deemed it best to change from open trench to tunnel he might do so, and that the price per yard stipulated for tunnel excavation should include all timbering. Held,, that the contractor could have no claim for extra expense on account of misrepresentations made before the execution of the contract, whereby the plan was changed from trench to tunnel, and timbering became necessary, nor would the paroi promise of the engineer to pay for the same help him in any way, as the work was not included in the contract, and as extra work demanded a written order.
    Appeal from circuit court, New York county.
    Action by John O’Brien and Heman Clark against the mayor, etc., of the .city of New York, to recover for work done under a contract. From a judgment of the circuit (15 N. Y. Supp. 520) entered on a verdict directed by the court for plaintiffs, but for too small a sum, plaintiffs appeal.
    Affirmed.
    Ingraham, J., delivered the following opinion on the motion for a new trial:
    “The different causes of action set up in the complaint may be divided into two general classes: First, those based upon the obligation of the defendant under the'contract made by the aqueduct commissioners, in the name of the defendant, under the authority conferred upon them by chapter 490 of the Laws of 1883, to build section six of the aqueduct, whereby plaintiffs seek to recover the amount due to them for work performed, and for which they are to be paid by the terms of the contract; and, second, those in which the city is sought to be held liable for the acts or failure to act of the chief engineer or his subordinates, where the contract contains no provision requiring the defendant to pay for the damages caused or expenses incurred thereby.
    “In order to recover for the amount due under the contract, the obligation is upon the plaintiffs to show that they have substantially performed the contract upon their part. So far as the causes of action which seek to hold defendant liable for the acts of the engineers appointed by the aqueduct commissioners, such causes of action must depend upon some relation that exists between the defendant and such engineers, or some liability upon the part of the city for the act of the person whose negligence caused the injury. The contract in question was prepared and submitted to the plaintiffs before they made their bids to build this section. In form, the contract is between the mayor, aldermen, etc., acting by and through the aqueduct commissioners by virtue of the powers vested in them by chapter 490 of the Laws of 1883, parties of the first part, and the plaintiffs, parties of the second part. The only authority that the aqueduct commissioners had to act on behalf of this defendant, the city of New York, was that conferred upon them by the statute under which they acted. They were not the general agents of the city; their authority was strictly limited by the provisions of the statute; and they could create no obligation which was binding upon the city of New York, except in accordance with the express provisions of the statute. That persons contracting with municipal corporations are chargeable with knowledge of the limitation of the powers of those assuming to act on behalf of such corporations is a principle that has been settled and supplied many times in litigations against the city of New York. Thus in McDonald v. Mayor, etc., 68 N. Y. 26, Folger, J., says: ‘It is fundamental that those seeking to deal with a municipal corporation, through its officials, must take great care to> learn the nature and extent of their power and authority.’ And it was there held that a contract made, by the officers of a municipal corporation, without complying with the provisions of the charter requiring the making of such contracts, is absolutely void, and imposes no liability upon the corporation, although the contract had been actually performed. And it was also expressly decided that, although the corporation appropriated the materials of the plaintiff and used them, the corporation was not bound to pay for such property upon an implied liability. And in Smith v. City of Newburgh, 77 N. Y. 136, the same principle was applied, Miller, J., saying: • The absolute excess of .authority by the officers of the corporation in violation of law cannot be upheld, and, where the officers of such a body fail to pursue the strict requirements of a statutory enactment under which they are acting, the corporation is not bound. In such case the statute must be strictly followed, and a person who deals with a municipal body is bound to see that its charter has been fully complied with. When this is not done, no subsequent act can make the contract effectual.’ Whatever authority, therefore, the aqueduct commissioners or its engineers had to bind the defendant it acquired under the act of 1883, and the city is not liable for any act of the commission or its officers, except when such act is within the power and authority conferred upon them by this statute. Chapter 490 of the Laws of 1883 is entitled ‘ An act to provide for new reservoirs, dams, and a new aqueduct, with the appurtenances thereto, for the purpose of supplying the city of New York with an increased supply of pure and wholesome water.’ By the first section the mayor, the comptroller, and the commissioner of public works of the city of New York, and three persons named, are authorized, empowered, and directed to carry out the provisions of the act in the manner thereinafter provided, ‘for the purpose of supplying said city with an increased supply of pure and wholesome water,’ and they are there designated ‘Aqueduct Commissioners.’ The act then provided for the preparation of plans, maps, specifications, estimates, and particulars relating thereto, for the construction of the new aqueduct, and for the construction of one or more dams and reservoirs to retain such water, and it authorized proceedings to condemn such lands as shall be necessary to build the aqueduct. Section 25 provides for the preparation of forms of contracts and specifications for the doing of the work, and furnishing of materials required to be done and furnished by the plans. The commissioner of public works is to prepare and submit to the aqueduct commissioners and to the counsel of the corporation the form of contract and specifications. Such forms of contract are to be either approved or rejected by the aqueduct commissioners, and must be approved as to form by the counsel to the corporation. In case of the rejection of the forms of contracts and specifications, the commissioner of public works is to prepare other forms in place thereof until the contracts covering the entire work and materials required by the approved plan or plans shall have been approved by the aqueduct commissioners and the counsel to the corporation. The aqueduct commissioners are given the exclusive authority to determine what provisions shall be embodied in said contracts, in order, so far as may be possible, to save the city from loss, embarrassment, and litigation by reason of any work done or supplies furnished thereunder, and when the forms of contract are finally approved, as provided for in section 25, the aqueduct commissioners are then authorized to advertise for bids for the doing of the work, and for furnishing the materials called for in such approved form of contracts, and are to accept such bids as will, in their judgment, best secure the efficient performance of the work, and to award to the successful bidders the contract for doing the work. Section 30 then provides that the contract, when so awarded, shall be executed in triplicate by the contractor or contractors on the one part, ‘and the said aqueduct commissioners, acting for the city of New York, on the other part,’ and it is provided that the work and materials called for by said contract shall be done under the direction and supervision, and subject to the inspection, of the said aqueduct commissioners, their engineers, supervisors, and inspectors. The legislature has thus constituted an entirely independent board, and intrusted it with the prosecution of this work. The board is appointed by the state, it provides its own officers, and it appoints its own agents and employes, and upon this board so constituted is imposed the duty of superintending and constructing the aqueduct. The city of New York is given no voice in the manner in which the work shall be done; in the supervision of the contracts; in the management of the details of the work; and the only power that the aqueduct commissioners have to bind the city is in the making of the contract which they are authorized to make on behalf of the city.
    “The statute thus expressly limited their power to create any liability binding upon the defendant, so that the city shall not be liable except for the amount of money directed to be paid by the contracts made by such officers in behalf of the city, and to prevent any possible doubt as to the intention of the legislature in limiting the liability of the city, as before stated. Section 30 contains the following provision: ‘ But in no event shall the city of New York be held liable in any proceeding or action brought or had under any contract so made to any other or greater liability than that expressed therein, nor required to pay out or otherwise dispose of any sum of money for the doing of such work or the furnishing of such material greater than is stipulated in such, contract, nor otherwise than in strict conformity to the terms thereof.’ Acting under this authority, and in accordance with the provisions of the statute, the aqueduct commissioners,, on behalf of the city, made a contract by which the plaintiffs undertook to build section 6 of the aqueduct, and a careful examination of the contract as made will show that in it there is but one obligation imposed upon the city,—one thing that the commissioners acting for the defendant agreed that the defendant would do; and this obligation binding upon the city is that, upon the estimates of the engineer as to the work done each month, the city would pay to the plaintiffs ninety per cent, of its estimated value; and that whenever, in the opinion of the engineer, the plaintiffs should have completely performed the contract on their part, and the said engineer should so certify in writing to the aqueduct commissioners, and in his certificate should state, from actual measurements, the whole amount of the work done by the plaintiffs, and also the value of such work under and according to the terms of the contract, and on the expiration of thirty days after the acceptance by said commissioners of the work therein agreed to be done by the plaintiffs, the defendant would pay to the plaintiffs in cash the amount remaining after deducting from the amount or value, contained or staled in the last-mentioned certificate, all such sum or sums of money as, by .the terms hereto, they are to or may be authorized to reserve or retain. The contract was to be carried out under the supervision of the aqueduct commissioners, but their acts in supervising such contract were not as agents of the city, nor under authority conferred upon them by a corporate act, but under the power given to them by the statute, and in conformity with its provisions. There is certainly no express provision of the statute making the defendant liable for the acts of the aqueduct commissioners or their employes, nor is there any relatian between such officers and the defendant created by the statute as would make the rule of» respondeat superior apply. The commissioners had the power to make a contract acting for the city of New York, and the defendant was bound to fulfill the obligations created by that contract, and that, obligation was to pay the amount certified by the engineer. It has been settled by repeated adjudications that, where the amount due to the contractor is to be determined by the certificate of an engineer or other third party, the production of a certificate is a condition precedent to a right to receive the amount to be paid to the contractor under the contract; or it must appear that the person designated has neglected or refused to give a certificate within a reasonable time after the contract has been completed and the application has been made therefor; that when a certificate is given it is conclusive upon the parties, and, in the absence of proof of corruption, bad faith, or misconduct on the part of the person designated, or palpable mistake appearing on the face of the certificate, neither party can be allowed to prove that such, designated person decided wrongly as to the law or facts. Byron v. Low, 109 N. Y. 291, 16 N. E. Rep. 45.; Sweet v. Morrison, 116 N. Y. 32, 22 N. E. Rep. 276; Phelan v. Mayor, 119 N. Y. 86, 23 N. E. Rep. 175; President v.. Coal Co., 50 N. Y. 266, and cases cited.
    “The causes of action to recover for money to be paid under the contract can be sustained only upon showing that, after the completion of the contract, plaintiffs had demanded of the engineer—who, under the contract, was to-make the final certificate—that he make such a certificate, and that he had refused or unreasonably neglected to comply with that demand, or that fraudulently, corruptly, or in bad faith he made a false certificate-, so that the court would be justified in setting aside the certificate as not binding upon the plaintiffs. By the contract sued on, the engineer was required to certify to-the aqueduct commissioners that the plaintiffs had completely performed the contract, and in.his certificate was to state from actual measurement the whole amount of the work done by the plaintiffs, and the value of such work under and in accordance with the terms of the contract. The engineer was not to certify to the plaintiffs, but to the. aqueduct commissioners, and, if be-so certified to them before the commencement of this action, it is clear that theamonntto which the plaintiffs' were entitled was the amount which, by such certificate, should appear to be due, over and above the payments theretofore made to the plaintiffs; and as it appears that the chief engineer, acting under this provision of the contract, did, on the 18th of June, 1889, certify to-the commissioners the amount due to the plaintiffs under the contract in this case, the certificate is binding upon the plaintiffs, unless they show fraud, corruption, or bad faith.
    “Assuming that there is evidence to sustain a finding by the jury that-prior to the 18th day of June, 1890, there had been an unreasonable delay in making ¿he certificates, such delay would not nullify a certificate actually made before an action was commenced to recover for the work done under the contract, nor entitle the contractor to proceed as though no certificate had actually been made. It is only where a party to a contract is entitled, because of his substantial performance of the contract, to receive the stipulated compensation for such performance, and commences his action to recover such compensation, and justifies his failure to produce a certificate required, by the contract to be made, that evidence of such refusal or negleit is material. Where it appears that, prior to the commencement of the action, a certificate required by the contract had been actually made by the person designated therein to make such a certificate, the time at which such certificate was made is immaterial, and such certificate becomes binding upon the parties, unless proved to be made fraudulently or in bad faith. By the contract in question the right of the plaintiffs to receive the final payment depended upon the making of the certificate by the engineer that the plaintiffs had ■completely performed the contract on their part, and his certificate was to state from actual measurements the whole amount of work Bone by the plaintiffs, and the value of such work according to the terms of the contract, and the. defendant was to pay in cash the amount remaining after deducting from the amount or value contained or stated in the last-mentioned certificates such sums as should theretofore have been paid to the plaintiffs under the provisions of the contract.
    “The engineer did, by his certificate of June 18th, certify to the whole amount of work done by the plaintiffs, and, although the provision as to the completion of the work was not in the exact form provided for by the contract, it was accepted by the commissioners as a substantial compliance therewith, and they subsequently accepted the work as substantially completed according to the terms of the contract. I do not think that the plaintiffs can complain as to the form of the certificate, it having been accepted by the aqueduct commissioners and the defendant as a certificate required by the contract, and I tliink this certificate as made is binding upon the plaintiffs, unless it appears that there was fraud, corruption, or bad faith upon the part of the engineer, and the question is now presented as to whether there is any evidence that would justify the submission of the question of the good faith of the engineer to the jury. There can be no doubt but that a plain .and gross error in the award, of such a character that would justify an inference that the engineer intended to allow to the contractor less than he was clearly entitled to, would be some evidence of such fraud or bad faith, but the error must be very plain and palpable. Perkins v. Giles, 56 N. Y. 232. The principal objection that plaintiffs have made to this certificate is as to the amount of rock excavation allowed plaintiffs, and that question depends upon whether or not the engineer should have allowed for the excavation outside of the space occupied by the brick masonry that forms the lining of the tunnel. To justify the submission of this question to the jury, it is not enough to show that the engineer lias made an honest mistake in the construction that he has given to the contract where a doubtful question was presented to him for his determination; for, by the -contract, where sucli a question arose the parties agreed that the.decision of the engineer should be controlling, and having given to this contract careful consideration, I am satisfied that the construction given to the contract by the engineer was not ■only a reasonable construction, but was, under the circumstances, the true construction of the contract. By clause 17 of the specifications, made a part •of this contract, it is provided that the form and area of the cross section of the tunnel excavation at any place shall be such as the engineer may determine for that place; and by clause 21 it is provided that the tunnel at any place is to be excavated to the line of the cross section determined by the engineer for that place. These two provisions, taken together, indicate the plain intention that the engineer was to determine for each particular portion of the tunnel the extent of the excavation that the proper construction of the aqueduct required. As the work progressed, the engineer was to determine how much of an excavation was required for the construction of the aqueduct at each particular place, and the area depended upon the nature of the substance in which the aqueduct was to be built; and, when at any particular point the engineer indicated the line to which the excavation was required, within that line was the form and area of the cross section of the tunnel at that place, and when such a cross section was established the contractor was bound to excavate up to that line. If the contractor did any excavation beyond that line, he was, by section 20 of the contract, to fill up the space between the top'of the arch and the rock and other material that remained, at his own expense. He was, however, to be paid only for the excavation within the line so given him by the engineer, as section 21 provided that * no payment will be made for any excavation outside of the cross section of the tunnel excavation determined by the engineer, but all loose or shaky rock must be removed.’
    “The contractor was thus required to remove all rock that had been loosened or shaken by the use of powder or other explosive used in excavating the tunnel up to the lines given to him, and it was thus contemplated that the excavations would necessarily extend beyond the lines of the necessary excavations for the structure. The contractor was not, however, bound to excavate beyond that line. If he did, he was not to be paid for it, but was expressly required to fill such extra excavation up. It seems to me that unner this contract the plaintiffs were not entitled to be allowed for any excavation beyond the lines established by the engineer as the lines to which the tunnel must, under the contract, be excavated. The evidence shows that the only line given by the engineer to the contractors, as the work progressed through the rock excavation, was the line that included the outside of the brick lining of the aqueduct, and the evidence is that, when that line was ■designated, the contractor was informed that he was to excavate up to that line; that his drill holes would be placed within that line, and that there must be no rock within the area thus designated; and it seems to me clear that, under the provisions of the contract, the line thus given to the plaintiffs by the engineer was the line provided by section 21 of the specifications as the line to which the contractor was bound to excavate, and for the excavation inside of that line he was to be paid. The fact that, by the method adopted by him for excavating, he necessarily removed some of the rock outside of the line so given to him, was contemplated by the parties at the time the contract was made, and provision was made, by the clause before quoted, that for any excavation outside this cross section, as determined by the engineer, the contractor was not to be paid. That provision would be without meaning if the cross section mentioned was to be not only the space within the line given to which the contractor was required to excavate, but also to include the space beyond such lines, which the ordinary methods adopted for such work would actually excavate. When the engineer was required to give his final certificate, this question as to the amount of excavation for which the plaintiffs were entitled to be paid was presented to him for his determination. Under the contract, by clause 5, it was expressly provided that the action of the engineer, by which the plaintiffs were bound and concluded, according to the terms of the contract, should be that evidenced by his final certificate, all prior partial payments being made merely upon estimates subject to correction of such final certificate. It was therefore at the time of making the final certificate that these questions had to be met and finally determined, and the prior decision of the engineer as to the amount of the excavation for which the plaintiffs were entitled to be paid was subject to correction at this time.
    “ There was nothing in any of the decisions of the engineer, prior to the time of making of the final certificate, that could possibly be binding upon the city, or conclude the engineer from adopting, at the time he made the final certificate, a construction of the contract that at that time seemed to him to be a proper one. The letter of February 7, 1887, was in form of a report to the aqueduct commissioners, and simply indicates an opinion as to the proper construction of the contract; and, while it might be adopted as an expression of the engineer’s views at that time, it could be nothing more than that, and could not estop him, or the person who should be chief engineer at the time the final certificate was to be made; and, as I understand it, it does not purport to relate to the final certificate, but merely to the provisional estimates, which, by the clause of the contract before cited, were to be subject to the correction of the final certificate. Nor could the aqueduct commissioners, nor any of their employes, by any construction of the contract made by them, so change the contract that additional liability was imposed upon the city. Under the act, the aqueduct commissioners had power to make a contract on behalf of the city only when the terms of the contract had been settled as prescribed in the statute, and they were given no power to bind the city by any resolution to pay any greater sum than the contract expressly provided that the city should pay, and I do not think that the action of the engineer and the aqueduct commissioners in February, 1887, and subsequent thereto, could have the effect of increasing in any way the liability of the defendant under the contract, or binding the engineer by his final certificate to-allow to the contractors any greater sum for rock excavation than they would be entitled to under the express provisions of the contract itself. There are other claims by the plaintiffs that were not included in the final certificate, but in each case the question as to whether or not the contractor was entitled to be paid for the work was to be determined by the engineer in his .final certificate, and I think there was in all cases a doübtful question for him to decide, and that there is no evidence to justify a finding that his decision was improperly influenced. I can see no evidence, therefore, that would justify a finding of corruption, bad faith, or misconduct on the part of the engineer, and the plaintiffs are therefore concluded by the engineer’s certificate, and are entitled to receive only the amount certified to by him as due. As to all claims against the city arising out of the misconduct or mistakes or errors of the engineer in charge of, the work, or on account of or by reason of damage sustained because of orders given to them by the commissioners or the engineer, there can be no recovery, because, by the express provisions of the act, the liability of the city of New York is limited to the amount required to be paid by the contract; to impose any other liability upon the city would be an express repeal of the statute under which the contract was made. As I have before stated, the limitations contained in the statute under which this contract was made and the work done bound the persons who made the contract for the doing of the work. The first section of that act designates the individuals who are to carry out its provisions, and the commissioners thus appointed are given the appointment of the necessary clerks, messengers, or employes; and it is the aqueduct commissioners, their engineers, supervisors, and inspectors, who were to direct, supervise, and inspect the carrying out of the performance of the contract.
    “It seems to me clear that neither the aqueduct commissioners, nor the engineers or inspectors, were servants of the defendant, so that the defendant was liable for their negligence. In the case of Maxmilian v. Mayor, etc., 62 N. Y. 163, the responsibility of a municipal corporation for the negligence of public officers is discussed, and it seems to me that the liability of the defendant for the acts of these officers is determined by the principle established in that case, Folger, J., in delivering the opinion of the court, says: * This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them, if not competent or skillful or well behaved, and to direct and control them while in his employ. The rule has no application to a ease where this power does not exist. * * * The difficulty is not here; it is in determining in a particular case whether the negligent employe is the servant of the municipality, for it is not every one who has in charge personal property owned by a municipality, and sets about some lawful act with it within the municipal bounds, that is its servant, nor even if his appointment comes intermediately or immediately from the municipality itself. If the act of the officer, or the subordinate of an officer thus appointed, is done in the attempted performance of a duty laid by the law upon him, and not upon the municipality, then the municipality is not liable for his negligence therein.’ And in Terhune v. Mayor, etc., 88 N. Y. 250, the same principle was reaffirmed, the court saying: ■ But the plaintiff claims that his action may be treated as one to recover of the city damages for his dismissal from office. It is a sufficient answer to this claim that the city did not dismiss him from his office. The fire commissioners were public officers, and not agents of the city.’ In Tone v. Mayor, etc., 70 N. Y. 165, it was held that the city was not responsible for the acts of the board of revision and correction; that in the discharge of their duties the members of that board acted as independent public officers, engaged in a public service. They were not selected by the corporation, and it could not control their acts. Their powers were defined by the legislature, and were not what might be properly called corporate powers; that, even if they may be properly called city officers, they are charged with a public service, and for any negligence or omission therefor in the discharge of their duties no action will lie against the city; and the maxim of respondeat superior has no application. And in Ham v. Mayor, etc., 70 N. Y. 462, it was held that the application of the doctrine of respondeat superior depended upon the question whether the power to discharge, direct, and control existed; that, to render the corporation liable for the acts of its officers or agents, they must necessarily have been its agents or servants, selected or appointed, and liable to be removed by a representative of the corporation for the manner in which they should discharge the trust reposed in them. Applying this principle to the case at b#r, it would seem clear that neither the aqueduct commissioners, nor their employes or servants, sustained such a relation to the city as would make the city liable for their acts of negligence. The-case of Mulholland v. Mayor, etc., (N. Y. App.) 20 N. E. Rep. 856, does not apply, for there it was the city’s engineer who required that the additional work was to be done, and it was for that act of the agent of the city that the city was held liable. I have thus come to the conclusion that upon neither of the causes of action alleged in the complaint can the plaintiffs recover more than the amount remaining due according to the certificate of the engineer for the amount to be paid under the contract; and the amount certified to by the engineer, and that amount only, is due. As to all other claims whereby the city is sought to be held for acts or directions of the aqueduct commissioners, or defendant’s agents or servants, the city is not responsible. The motion of the defendant that a verdict be directed for the plaintiffs for the amount remaining unpaid, according to the certificate of the engineer, is therefore granted.”
    Argued before Van Brunt, P. J., and Lawrence and Patterson, JJ.
    
      E. T. Lovatt, for appellants. Jas. C. Carter, Elihu Root, and W. H. Clark, (Austen (?. Fox and Wallace Macfarlane, of counsel,) for respondent.
   "Van Brunt, P. J.

On the 1st of June, 1883, the legislature passed an act (being chapter 490 of the-Laws of 1883) entitled “An act to provide new reservoirs, dams, and a new aqueduct, with the appurtenances thereto, for the purpose of supplying the city of 27ew York with an increased supply of pure and wholesome water.” By the first section of this act the mayor, comptroller, commissioner of public works, and three citizens were authorized, empowered, and directed to carry but the provisions of the act in the manner thereinafter provided, and they were to be known as the “Aqueduct Commissioners.” By the second section it was provided that the commissioner of public works should, under the direction of the aqueduct commissioners, as soon as possible after the passage of the act, submit to them a plan or plans for the construction of a new aqueduct or conduit for water, and for the construction of one or more dams or reservoirs to retain such water, and for the construction of the appurtenances thereto. These plans the aqueduct commissioners might adopt, modify, or reject, in whole or in part; and might cause such surveys to be made as they might deem expedient to enable them to act intelligently in ttie premises; and it was provided that, in case of the rejection of any such plan of plans by the said aqueduct commissioners, the said commissioner of public works should in like manner prepare and-submit another plan or plans, etc.; which course should be continued until a plan or plans covering the entire work contemplated by the act should be approved by the aqueduct commissioners. The act then provided for the acquisition of the land necessary to carry out the work. And by the twenty-fifth section it was provided that the commissioner of public works should from time to time, as might be necessary, prepare and submit to the aqueduct commissioners, and to the counsel to the corporation, forms of contract and specifications, and bonds for the faithful performance thereof, for the doing of the work and the furnishing of the materials required to be done and furnished by the said approved plan, or for the doing of such parts of such work, and the furnishing of such parts of such materials, as might from time to time be required for that purpose; which forms of contracts, specifications, and bonds were to be approved by the aqueduct commissioners, and approved as to form by the counsel to the corporation; and that the said aqueduct commissioners should have the exclusive authority to determine what provisions should be embodied in said contract, in order, so far as might be possible, to save the city from loss, embarrassment, and litigation by reason of any work done or supplies furnished thereunder, which approval should be evidenced by their certificate indorsed thereon, signed by a majority of them; and the approval o®the counsel to°the corporation was to be evidenced by his certificate to that effect, indorsed in like manner. By section 26 it was provided that when the form of the contract, with its specifications, and the form of the bond for the faithful performance thereof, should have been approved as above provided, the said commissioners should advertise for sealed bids or proposals for the doing of the work-or the furnishing of the materials called for in such approved form of contract; and, after the receipt of such bids or proposals, by section 28 it was provided that they should be publicly opened by said aqueduct commissioners, who were empowered to accept that bid or proposal, the acceptance of which would, in their judgment, best secure the performance of the contract, or they might reject any and all such bids. Section 30 provided that the contracts, when so awarded, were to be executed in triplicate by the contractors on the one part, and the aqueduct commissioners, acting for the city of New York, on the other part; and that the work and materials called for by such contract should be done and furnished under the direction and supervision, and subject to the inspection of said aqueduct commissioners, their engineer, supervisors, and inspectors; but such direction, supervision, and inspection might be intrusted to the engineers and other subordinates of the department of public works, so far as said commissioners should so direct; but in no event should the city of New York be held, in any action or proceeding brought or had under any contract so made, to any other or greater liability than that expressed therein, nor be required to pay out or otherwise dispose of any sum of money for the doing of such work or the furnishing of such material greater than is stipulated in said contract, nor otherwise than in strict conformity to the terms thereof. Séction 33 provided that all work thereby authorized to be done, and all materials to be furnished, involving an expenditure of over $1,000, should be procured by contract made in the manner required by and pursuant to the provisions of the act. The said commissioners were, however, empowered, without contract, to cause such surveys to be made, and such maps and plans prepared, as should, in their opinion, be necessary to carry out the provisions of the act, and might appoint and fix the compensation of suitable engineers and other persons to supervise and inspect all the work by said act authorized to be done. The said aqueduct commissioners were also empowered to procure any work to be done without contract, not involving the expenditure of over $5,000, if they should certify that, in their opinion, it was for the public interest that such work should be so done, and in such certificate they were required to state their reasons therefor.

Pursuant to the authority thus conferred upon this board, forms of contract and specifications were proposed by the commissioner of public works to the aqueduct commissioners, and approved by them, and also as to form by the corporation counsel. Bids were thereupon invited in the manner provided by the statute for different portions of the contemplated work; and,.the plaintiffs in this action having bid for that portion of the work known as “Section 6,” the contract therefor was awarded to them, and a contract in the manner prescribed by the statute was executed by the said contractors, and on behalf of the city by the aqueduct commissioners. By this contract the plaintiffs agreed that they would, at their own expense and in strict conformity to the specifications in said contract contained, furnish all the materials and labor necessary or proper for the purpose, and in a good, substantial, and workmanlike manner excavate a tunnel and its shafts, do all other excavation and build all masonry, and do all other work necessary to build the aqueduct and all its appurtenances from the points therein named, in the manner and under the conditions therein specified.

Various general provisions then follow the contract, to the effect that, to prevent all disputes and litigation, it was agreed between the parties to it that the engineer should in all cases determine the amount of the work, and quantities of the several kinds of work which were to be paid for under the contract, and should determine all questions in respect to said contract, and the construction thereof, and in all cases decide every question which might arise relative to the execution of the contract on the part of the contractor, and this estimate and decision should be final and conclusive in case any question should arise, and should be a condition precedent to the right of the plaintiffs to receive any money under the contract; and the work to be done under the contract being mostly underground, and it being impossible at the time of' the execution of the contract to estimate with accuracy the quantity of the various classes of work to be done and materials to be furnished, it was therefore therein stated to be expressly understood and mutually agreed that the estimated quantities stated in the notice attached to the contract should be only for the purpose of comparing on a uniform basis the bids offered; and the contractor agreed that neither the parties of the first part nor the aqueduct commissioners, nor any of them, were to be held responsible that any of the said estimated quantities should be found even approximately correct in the construction of the work; that he was satisfied and would at no time dispute the said estimated quantities as a means of comparing the bids, and that he would make no claim for anticipated profits or loss of profits because of a difference between the quantities ■of the various classes of work actually done or materials furnished and said estimate; and he undertook and agreed that he would complete the entire work to the satisfaction of the aqueduct commissioners, and in accordance with the specifications and plan in said contract mentioned, at. the price therein agreed upon and fixed therefor, except for such extra work for the performance of which written orders might be received as in said contract elsewhere specified. It was further agreed that the said tunnel, shafts, and trenches should be excavated, and the masonry built, and all the work, labor, and material to be done and furnished under the contract should be done and furnished, strictly pursuant to and in conformity with the specifications attached to the contract, and the direction of the engineer under them, which specifications were declared to form a part of the contract.

By the first paragraph of said specifications it was provided that they show the location of the work and its general character, and that, during the progress of the work, working plans should be furnished by the engineer, and that all work during its progress and on its completion must conform truly to-the lines and levels given by the engineer, and must be .built by the plans and directions given by him from time to time, subject to such modifications and additions as he should deem necessary during its execution; and that in no-case would any work, in excess of the requirements of the plan or specifications, be paid for unless ordered in writing by the engineer, as thereinafter set forth. Paragraph 8 declares that borings have been made on portions-of' the line to ascertain the nature of the underground strata through which the-shaft and tunnel are to be constructed, and the results of the borings are shown on the plans; but, should the character and extent of the various materials be-found to differ from what is indicated, the contractor shall have no claim on that account, and it is expressly understood that the city does not warrant the indications of the borings to be correct. And paragraph 9 provides that the-places where it is believed that the excavation is to be in tunnel, and wherein open trench, and the limits of each, are shown on the plan, but if in the-opinion of the engineer the nature of the material to be excavated at any-point, or the conditions of the case, shall render it advisable, he may require the excavation to be made in tunnel, although the plans indicate that it is to-be made in open trench, or vice versa. Paragraph 18 provides that masonry should be built within the tunnel at such points, and of such material, and of such form and dimensions, as the chief engineer may determine from tirneto time, (referring to certain sheets for illustrations of some of the proposed forms.) Paragraph 19 provides for sleepers of certain dimensions to be built in the sidewalks and floor, and that no deduction in the measurement of the-masonry will be made for the sleepers, which must be built true and smooth.

Paragraph 21 provides that the tunnel at place is to be excavated to the-lines of the cross section determined by the engineer for that place, and that no payments would be made for any excavating outside of the cross section, of the tunnel excavation determined by the engineer, but all loose or shaky rock must be removed. The price per cubic yard stipulated in said contract, for tunnel excavation was to cover all excavation due to the presence of quicksand or other soft material, rotten rock, boulders, etc.; and the cost of all pumping and baling, of all timbering and the removal of same, of removing-all excavated materials, of all ventilation, and of all other work incident to-the excavation of the tunnel, and any expenses that might arise from loose- and shaky rock or from falls or cave-ins, or from unexpected obstacles, were-to be borne by the contractor. Paragraph 22: The engineer was authorized to order at any time additional excavations in the tunnel or-shafts, and the-contractor was to do such excavation, which was to be measured according-to the lines of the cross sections determined by the engineer, and paid for by the cubic yard as tunnel excavation. By paragraph 23 it was provided that if, after the excavation had been made of a certain size by direction of the engineer, he should be.of the opinion that the nature of the rock or other material was such that the form and dimensions of the masonry for which said excavation was intended must be increased, he might order an enlargement, of the excavation for the purpose of building masonry of greater thickness, and the contractor was to make such enlargement, which was to be measured; according to the lines given by the engineer, and to be paid for at the price per cubic yard in said contract stipulated for tunnel excavation. Paragraph 24: In rock excavation the drilling and blasting were to be conducted with all possible care, so as not to shatter the roof and sides of the tunnel outside of the lines determined by the engineer, and in soft material precaution must be taken not to allow cavities to be formed behind the timbering or other supports, and especially in the vicinity of the existing Croton aqueduct the-blasting and timbering, and any other operation connected with the work,, should be so regulated as not to cause injury to said aqueduct; and the contractor was to be held responsible for all injuries to said aqueduct caused by-his work. Paragraph 25: If, in the opinion of the engineer, the contractor, by the use of too high explosives, bad location of drill holes, and defective arrangements of timbers or supports, or want of proper skill or attention, should excavate the tunnel or shafts to greater dimensions than was required for the proper building of the masonry, the excess of tunnel or shaft area thus formed should be solid, at the expense of the contractor, with such kinds of masonry (brick, concrete, or rubble masonry as in said contract specified) or other material as the engineer might direct. By paragraph 26 the contractor was mad,e responsible for properly supporting the roof and sides of the tunnel, and the sides of thetrenchesand shafts, with timber or other supports; and it was further provided that, if the engineer should be of opinion that sufficient or proper supports had not been provided, he might order additional supports, or order them modified or replaced at the expense of the contractor, and the compliance with such order by the contractor should not relieve or release him from his responsibility for the sufficiency of such supports. Paragraph 49 provided that all lines and grades were to be given by the engineer, who might change them from time to time as he might be authorized and directed by said aqueduct commissioners, even to the extent of lowering or raising the grade line of the aqueduct, or ordering vertical or side drifts. By paragraph 51 it was stated that the plans and specifications were intended to be explanatory of each other, and should any discrepancy appear, or any m isunderstanding arise, as to the import of anything contained in either, the explanation and decision of the chief engineer should be binding and final upon the contractor, and all explanations required, alluded to, or necessary to complete any of the provisions of the specifications, and give them due effect, were to be given by the engineer.

By section H of the specifications it was provided that no claim for extra work should be made unless, before the performance of such extra work, the said commissioners should have first authorized in writing such extra work, and should have also first certified in writing for each and every order that it is in their opinion for the public interest that such extra work should be done, stating in such certificate their reasons therefor; nor unless, before the performance of such extra work, the price or prices to be paid therefor should likewise first have been agreed upon in writing between said commissioners and the contractor, and done in obedience to the written order of the chief engineer, and that the aggregate price should not exceed the sum of $5,000 on any one order. By subdivision 0 the prices for the work and its general character were fixed. For tunnel excavation, including all work incidental thereto, $7 per cubic yard was to be paid; for brick masonry laid in American cement mortar, and all incidental work, $10 per cubic yard; for concrete masonry, including all incidental work, $5 per yard for one composition, and $5.50 for another; and for rubble-stone masonry, including all incidental work, $5 per cubic yard, etc. By subdivision T of the specifications it was provided that, in order to enable the contractor to prosecute the work advantageously, the engineer should once a month make an estimate of the work done, and the value thereof, according to the terms of the contract, which estimates should not be required to be made by strict measurement, but might, at the option of the engineer, be approximate only; and that, upon each such estimate being made, the contractor was to receive 90 per cent, of the estimated value of the work done and materials.furnished; and that whenever, in the opinion of the engineer, the contractor should have completely performed his work, the engineer should so certify in writing to the aqueduct commissioners, and his certificate should state from actual measurement the whole amount of the work done by the contractor, and also the value of the work according to the terms of the contract; and that, on the expiration of 30 days after the acceptance by said commissioners of the work agreed to be done, the city should pay to the contractor in cash the amount remaining, after deducting from the amount so valued, contained, and stated in said last-mentioned certificate all such sums as should theretofore have been paid. And by subdivision U it was expressly agreed and understood that the city of Hew York should not, nor should any department or officer of the city of Hew York, be precluded or estopped, by any return or certificate made or given by any engineer, inspector, or officer, agent or appointee, of said aqueduct commissioners, from at any time showing the true and correct amount and character of the work which should be done, and the materials which should have been furnished by the contractor. And by subdivision Y it was expressly understood and agreed that the action of the engineer, by which the said contractor was to be bound and concluded according to the terms of his contract, should be that evidenced by his final certificate; all prior partial payments being merely upon estimates subject to the correction of such final certificate, which final certificate might be made without notice thereof to the contractor, or the measurements upon which the same was based.

The plaintiffs, (the contractors,) having entered upon and completed the work mentioned in the contract, brought this action to recover certain sums alleged to be due for work done by them under and in pursuance of said contract, or during and in the course of the performance thereof. The answer of the defendant was to the effect that the chief engineer of the aqueduct commissioners proceeded to determine and did determine the amount and quantities of the several kinds of work which were to be paid for under said contract, and the whole amount and the value of said w'ork under and according to the terms of said contract, and made his final estimate and decision thereof, and evidenced the same by his certificate, wherein he stated from actual measurement the whole amount of work done by the plaintiffs, and the value of such work under and according to the terms of said contract; and that, as appears by said estimate and decision and final certificate, there remained due to the plaintiffs the sum of about $20,000, and no more; and denied, generally, all liability beyond this sum for any work claimed to have been done by the contractors. Upon the trial a verdict was directed in favor of the plaintiffs for said sum only, and from the judgment thereupon entered the plaintiffs take this appeal;

It will be impossible to discuss in detail the questions which arise relating to the numerous causes of action set out in the complaint, some of which are stated in various forms; but it will be sufficient, in "determining this appeal, to confine ourselves to the consideration of some general propositions, which necessarily dispose of all the claims which have been advanced both upon the part of the plaintiff» and the defendant. It is apparent that the plaintiffs must be claiming either for work done under the contract in question, and pursuant to its terms, or for work outside of its provisions, and which, therefore, necessarily comes under the designation of “extra work.” From the language of the complaint it is difficult to determine the proposition as to whether the plaintiffs seek a recovery because of any extra work, or whether they simply desire to declare that all the work for which they claim compensation has been done in pursuance of the contract. In considering this question, it must be borne in mind that the liability of the defendant is strictly statutory, and we must look to the act of 1883 for the authority to impose whatever liability the defendant has incurred. This is manifest; because the work in question was not done -by the agents or servants of the defendant corporation. The Croton aqueduct commissioners and their employes were independent of the corporation as to the tenure of their office, and the manner of discharging their duties, and they were in no way amenable to the corporation. The subordinates were subject entirely to the orders and direction of the aqueduct commissioners, who were created by direct legislative enactment. Such being the relations between the city and the persons who had charge of this work, the authority of those persons to charge the city must necessarily be found in the law creating them, and defining the manner and method by which they were to accomplish their work. The legislature took upon itself to construct, by its own officials, a public work for the benefit of the inhabitants of the city of New York; and by virtue of its sovereign power, ignoring all claim which the municipal corporation might have to control its own private affairs, put its hands into the public treasury of said city for the purpose of paying the expenses thereof. With the question as to the initiation of this work, or its progress or manner of execution, the city had nothing whatever to do. Its office was to pay those obligations which the statute authorized to be imposed upon it, and it had no other relation to or connection with the work in question. In this respect the position of the city differs materially from that which it occupied in the case of Bailey v. Mayor, 3 Hill, 531, 2 Denio, 433, as in that case the work could not proceed without the authority of the electors in the city.

By the act under consideration it is apparent that the only manner in which liability could be created against the city beyond the amount of $1,000 was by writing, and beyond the amount of $5,000 by contract in writing, except that relating to the surveys, maps, plans, and estimates necessary to be prepared, and in reference to the compensation of engineers and other persons to supervise and inspect the work by the act authorized to be done. No claim is presented for extra work in which these requirements of the statute have been complied with; and-therefore it follows that for such extra work, even if performed, no liability could be imposed upon the city, because, as has already been stated, the persons having the control of the construction of this public work were acting pursuant to legislative authority, and only for such expenditures as could be shown to have been incurred pursuant to such legislative authority could the city be made liable. The claims, therefore, of the plaintiffs must be considered as presented for work done under the contract, and pursuant to its terms; and the questions of difference between the plaintiffs and the defendant, as far as the questions involved in this appeal are concerned, therefore relate to the construction of the terms of the contract.

It seems to be claimed upon the part of the plaintiffs that they were bound to follow the directions of the engineer in chief and his assistants, and are entitled to avail themselves in this action of constructions which were given by the engineer during the progress of the work in reference to the terms of the contract. It is apparent, both from the language of the statute, and also from the language of the contract, that liability could not arise out of talk. The aqueduct commissioners were expressly prohibited from creating liabilities in that way, and the contract prevented the engineer from directing the performance of any work in excess of the requirements of the plans and specifications, unless in writing. It is true that the work was to be performed in accordance with the plans of the engineer and the directions given by him from time to time, subject to such modifications and additions as he should deem necessary during its execution. But it is apparent that, if any of these modifications were in excess of the requirements of the plans and specifications, it was necessary that the engineer should order the same in writing. And therefore, primarily, the obligation of the city to pay must be either because of work done or materials furnished pursuant to the strict letter of the contract, or of the performance of some work in excess of the requirements of the plans or specifications ordered in writing by the engineer. But even these are not sufficient to constitute a complete obligation upon the part of the city, because such obligation to pay depends upon the giving by the chief engineer of his final certificate, based upon actual measurements, as to amount of work done, the value of which work was to be determined by the terms of the contract. In the case at bar such final certificate was given, and for the amount represented by such final certificate the plaintiffs have had judgment. But it is claimed upon the part of the plaintiffs that such final certificate is incorrect, in that it improperly excludes work done by the plaintiffs, for which, under the terms of the contract, they are entitled to compensation. There is no imputation ■ that this certificate was fraudulently given; and therefore it would seem that the plaintiffs are bound by its terms, if the language of the contract which was entered into by them with the aqueduct commissioners upon the part of the city is to receive any reasonable interpretation.

With the hardships of such a construction we have nothing to do. The obligation of the city, as has been heretofore more than once repeated, depends upon the terms of the contract; and, if no such obligation is shown upon tlie part of the plaintiffs according to the terms of the contract, we cannot see where liability upon the part of the city arises. And therefore it would seem that this final certificate was absolutely conclusive, and whether it could be impeached for fraud or not is a question which it is not necessary for us now to determine. But the difference between the engineer in giving the final certificate and the contractor seems to depend upon the construction of the terms of this contract; the claim of the plaintiffs being largely based upon the fact that in the early part of the work, before its final completion, the engineer intimated that some more liberal construction of the contract ought-to be made for the benefit of the plaintiffs. But it does not seem to require argument to show that the limitations of the contract could not be construed away by interpretations of the chief engineer, and we have searched in vain through the contract for any provision therein contained which would justify such a construction. It is true the work is to be done under the directions of the chief engineer, and he may modify the work, and its manner of doing; but unless there is a provision in this contract for payment for that kind of modified work, then there is no obligation upon the part of the city to pay, and the contractor was not bound to do it.

It is true that it is urged that, in order that the work should progress at all, it was necessary that the contractor should follow the directions of the engineer. But this argument is based upon the maxim that necessity knows no law; and that it being necessary for the contractor in his prosecution of this work to obey the directions of the engineer, even though they were without the pale of the law which gave the engineer any authority to act, still a liability exists. Such is not the case. The engineer had no roving commission which would entitle him to alter the terms of this contract, and impose additional obligations upon the city independent of, and at variance with, its terms. The most that can be said is that, where the contract was ambiguous, the directions of the engineer in favor of one or another construction might, under the terms of the contract, be considered binding both upon the contractor and the city. But in a case where there has been provision in the contract for the doing of the work, and for the measurement of liability because of the doing of the work, the engineer had no power, by any interpretation that he might give, to waive its terms or obligations, and thereby impose additional burdens upon the city. The language of the statute is that in no event shall the city be held, in any action or proceeding brought or had under any contract so made, to any other or greater liability than that expressed therein, nor required to pay out or otherwise dispose of any sum of money for the doing of such work, or the furnishing of such materials, greater than is stipulated in such contract, nor otherwise than in strict conformity to the terms thereof. Therefore it seems to us that all this discussion as to the interpretation the engineer placed upon this contract has no bearing upon the question as to the liability of the city; and although many of the claims of the plaintiffs in reference to the action of the chief engineer may be shown by an examination of the record in this case to be unfounded, it is not necessary, in the view we have taken as to the relations of the parties, to enter into their discussion, except in one or two instances.

One of the principal claims advanced by the plaintiffs is that relating to tunnel excavation, it being urged that under the contract they are entitled to recover, as for excavations, for all the space outside of the brickwork which has been filled with masonry, which masonry has been estimated and paid for by the defendant. In support of this position it is claimed that, in places where the space is filled in with dry filling outside of the brickwork, the tunnel excavation is allowed for and to be paid by the defendant; and that such payments were intended by the provisions of the contract has always been agreed to by the parties to the contract; and that the minimum line given to the contractors bounds a greater area than the line that only includes the outside of the brickwork; and that the evidence shows that one of the division engineers told the contractors, and illustrated to them on the face of the tunnel, that no rock should be left inside of a section 16 feet high and 16 feet wide; and that the work of excavation of the portion of the tunnel that was made from the commencement of the work until January, 1886, was done in accordance with that direction, and yet not a foot of the tunnel is estimated in accordance therewith. The truth of the representations made by the plaintiffs in this regard it is not necessary to investigate, because the contract is certain and explicit in reference to the area that was to be allowed for in estimating tunnel excavation, and, as has already been intimated, no direction or statement upon the part of the engineer could modify its provisions.

The specifications (paragraph 17) provide that the form and area of the cross section of the tunnel at any place shall be such as the engineer shall determine for that place, but at all points it shall have an area of at least 201 square feet. It then states that various forms of cross sections of the tunnel are illustrated on sheets 8J, 9-|, and 16 of the plans, and that on the plans the line limiting the cross section of tunnel excavation is designated by letters, A, A, A. It is conceded upon all sides, and apparent upon an inspection of the plans, that the letters A, A, A, show the exterior line of the outside of the brick lining of the aqueduct. Therefore the contract itself has defined what is intended in the contract by the words “cross section,” and what shall be its limits; and therefore, when the engineer has determined the diameter of the tunnel and the thickness of the lining, he has determined the cross section, and there is no discretion given to the engineer to determine the cross section in any other manner. Upon a determination made in this manner, the whole of the provisions of the contract in reference to tunnel excavation are based. Subdivision 21 says that the tunnel at any place is to be excavated to the lines of the cross section, determined by the engineer for that place, and that no payments will be made for any excavating outside of the cross section of the tunnel excavation determined by the engineer, but all loose or shaky rock must be removed. It is certain that the loose or shaky rock removed under these circumstances is not to be paid for. ■ If it were, why the necessity of stating the fact that it should be removed? The space from which all the loose and shaky rock was to be removed was to be filled in, pursuant to the terms of the contract, with masonry; and the question as to whether the contractor should be paid for such masonry depends upon whether, in the opinion of the engineer, such loose or shaky rock had been ■caused by a want of proper skill or attention of the contractor in making the excavation. Subdivision 25. Furthermore, in the same subdivision 21 it is provided that the price per cubic yard stipulated in said contract for tunnel excavation was to cover all excavation due to the presence of quicksand or other soft material, rotten rock, boulders, and the cost of all pumping and baling, of all timbering and the removal of same, of removing all excavated materials, of all ventilation, and of all other work incident to the excavation of the tunnel; and any expense that might arise from loose and shaky rock, or from falls or cave-ins, or from unexpected obstacles, was to be borne by the contractor.

If the contractor was to be paid for the total excavation necessarily made in excavating the cross section, why was there any necessity for the provision that any expense that might arise from loose or shaky rock, etc., or from unexpected obstacles, should be borne by the contractor? That it was the purpose of the contract to limit the cross section to the exterior line of the masonry lining of the tunnel is also evidenced by the twenty-third subdivision of the specifications, which provides that if, after the excavation had been made of a certain size by direction of the engineer, he should be of the opinion that the nature of the rock or other material was such that the form and dimensions of the masonry for which such excavation was intended (evidently referring to the masonry lining.of the tunnel) must be increased, he might order an enlargement of the excavation for the purpose of building masonry of greater thickness, and the contractor was to make such enlargement, which was to be measured according to the lines given by the engineer, and to be paid for at the price per cubic yard stipulated for tunnel excavation. In other words, if after the engineer has determined the limits of the cross section, consisting of the diameter of the tunnel, plus the thickness of the brickwork, it is ascertained, because of the nature of the rock or other material, that it is necessary to have a thicker lining, (“masonry of greater thickness” are the words of the specification,) the engineer might order the additional excavation to be made. The contractor is bound to do the work and charge at the same rate for this additional excavation that he would have been entitled to receive had such enlargement not taken place, although it is conceded it was a more expensive method of doing the work for the contractor. The argument that, because a liability was recognized upon the part of the city to pay for filling solid (where such filling was by masonry) the area of excavation over the limits of the cross section, provided it was not excessive, therefore there was an obligation to pay for the excavation beyond the limits of the cross section, cannot prevail, as the two are entirely independent, and they each recognize, what the parties to the contract well understood to be the fact, that there must be excavation beyond the limits of the cross section, and that that excess must be filled,—if with masonry, to be paid for, (subdivision 18;) if with dry filling, at the expense of the contractor, (subdivision 20.) Hence the provisions of subdivision 25, authorizing the engineer to compel the contractors to fill in at their own expense such part of such excess of tunnel or shaft area as should be formed by want of proper skill and attention in the making of the excavation. It is true it would appear as though the chief engineer was of the opinion that he had the right to do in respect to these contractors that which he might think was equitable, no matter what might be the provisions of the contract. But it is clear that he entirely mistook the position which he occupied and the powers conferred upon him by the contract in question. Mottling that he could say or do could be made binding upon the defendant, unless the authority for the saying and doing can be pointed out in the contract; and therefore all that was said in the monthly estimates or in the letters of the chief engineer, which in any respect militates against the plain terms of the contract, was in no way binding upon the defendant; and when the aqueduct commissioners directed the engineer in his estimates to be governed by the contract, they did nothing more than instruct him that he was bound by the law.

The claim of the plaintiffs for timber placed and fastened does not seem to have any foundation in the provisions of the contract. This claim seems to be based upon alleged misrepresentations made to the plaintiffs, prior to the execution of the contract, in regard to the nature of the ground that would be encountered, whereby the use of timbering became necessary, the plan being changed from open trench to tunnel. It will be observed that subdivision 8 of the specifications, heretofore referred to, entirely relieves the city from any responsibility for representations as to the verity of the results assumed from the borings which had been made upon the line of the work; and that subdivision 9 gave authority to the engineer, whenever in his opinion it should be desirable, to change the excavation from open trench to tunnel; and that by subdivision 21 it is provided that the price per cubic yard stipulated in the contract for tunnel excavation should include all timbering, and the removal of the same. It is true when the change was made that there was evidence that it was stated to the engineer that this new plan of timberipg was going to cost the contractors much more, and the reply of the engineer was: “Very well; you put the timbering in, and we will pay you for it; and whatever extra it costs you, and the extra amount of timbering you put in there, we will have our engineers estimate you for, and pay you for it.” But this was not an order of extra work in the manner provided by the contract, and it was not included within the contract; hence there seems to be no foundation for this claim.

The claim as to grading stands in precisely the same position, and clearly was not the masonry contemplated by the contract; and it would seem that the plaintiffs agreed to do it at their own expense, and that it was done by them voluntarily, and in order to make their work complete under the contract; and that, in any event, it was extra work, and the conditions precedent to liability had not been fulfilled. The claim in respect to extra work done and materials furnished, on account of errors in alignment, does not seem to be provided for by the contract, and hence no liability could arise. It does not seem necessary to advert to the other causes of action, particularly as the principles already enunciated seem to dispose of the claim founded upon such causes of action. The claim for footing stones is admitted by the defendant to be an equitable one to the extent of $240. But the plaintiffs having made no claim to the engineer on this subject, and never having put him in a position in which he could allow the claim in his final certificate, it, would seem that the condition precedent had not been complied with, necessary to allow a recovery as matter of right to this amount. In fact, very few of the causes of action alleged in the complaint have ever been presented to the chief engineer, or were presented to him-prior to the making of his final certificate, so that he might pass upon the same, and include them in final certificate, if it was proper to do so. This would seem to be an additional obstacle in the way of a successful prosecution of the claims made in the action at bar. Upon the whole case, therefore, we are of opinion that a recovery cannot be had in this action beyond that which was ordered in the court below. As has been iterated and reiterated during this opinion, the foundation of all liability upon the part of the city must be found in the law and the contract; and unless it can be shown that the claimed liability has authority from the law commanding the contract, and from the contract, then clearly it does not, exist. It seems to us that the difficulty in the case arose from the fact that in the entering into this contract, and in the early progress of the work, both the contractor and'the chief engineer entirely misapprehended their relations to it, and their rights and obligations under it; each assuming that equitable considerations might have their weight in determining questions where the rigid terms of the contract seemed to work a hardship. In these both were clearly mistaken, as by the law liability could only be fastened upon the city in the manner by it prescribed.

The judgment should therefore be affirmed.

Lawrence, J., concurs.

Patterson, J.,

{concurring.) I concur in the views expressed in the opinion of tile presiding justice, and in the conclusion reached that the plaintiffs cannot recover in this action anything more than the amount of the judgment entered upon the verdict directed on the trial. There are several obstacles in the way of a further recovery on any of the causes of action set forth in the complaint, one of them being the final certificate of the engineer given in accordance with the requirements of the contract, and by which certificate the plaintiffs were necessarily bound; for there is nothing in the ease, as I read it, that impeaches such certificate, or would permit the court to ignore or disregard it. When the contract was entered into, it was in the form and contained stipulations adopted by the aqueduct commissioners, not only under the authority, but by the peremptory command, of the act creating the commission. Bids were invited upon that contract, and the plaintiffs must have known all its terms, conditions, and provisions when they entered upon the obligations they assumed under it. There was neither fraud nor any other legal ground for attacking the final certificate. It was made by the contract conclusive evidence as a final estimate, founded on actual measurements, and an actual ascertainment of the work done, for which the plaintiffs were entitled to final payment from the city; and, although it may have been made upon a different basis of computation from that which entered into the intermediate and provisional certificates, yet it seems to have been honestly made, in accordance with the requirements of the contract in that regard; and as making it was a •condition precedent to the right of the plaintiffs to receive final payment, and as the amount fixed thereby was to be the measure of ultimate liability, it stands as a barrier to any further recovery than that above referred to. So far as the facts set forth in various causes of action asserted in the complaint are concerned, it seems to me that, notwithstanding the theory of liability predicated of them, all claims connected therewith come'under the contract itself, and that in their nature, as considered with respect to the terms of the contract and the provision of the statute as to liability of the city, none of them can be enforced as claims arising extrinsic thereof. There, however, is one cause of action in respect of which a serious argument has been made, that the city is liable because of mistakes of the engineers in giving erroneous lines and levels of parts of the contract work, whereby that work was largely increased, and a much greater expenditure caused to the contractors than would have been necessitated had those erroneous lines and levels not been given. The claim is made that the city is liable for these mistakes of the engineers, for the reason that those who gave the instructions were the agents and servants or officers of the city, and the latter is bound by their acts, and is responsible to the plaintiffs as in an action-for damages for negligence. At the trial the learned judge discarded this view, and held the city was not liable. The authorities he cited in the opinion delivered by him in disposing of the case at the circuit sustain his ruling, and, upon the general principle relating to the liability of a municipal corporation for the negligence or wrongful acts of its servants or officers, I think, in view of the peculiar attitude in which the city stood to the subject-matter of the contract and to the aqueduct commissioners and their employes, the ruling was right. We have not been referred by the appellants’ counsel to any adjudicated case or decision at variance with the views expressed on this subject by the learned judge at circuit, but we suppose they would rely upon People v. Civil Service, etc., Board, 41 Hun, 286, as an authority opposed to the ruling under consideration. That case was 'decided by this court, and was affirmed by the court of appeals. 103 N. Y. 657. It declared the status of the aqueduct commissioners and their employes as to the city, and distinctly held that they were agents and servants of the city, within the meaning of the civil service act, and that this was so because the city was bound by the contracts of the commissioners. But it really decided nothing more than that. The court did not pretend to pass upon the questions of what contracts might be made by the commissioners, or the liability of the city for wrongful acts of the employes of the commissioners connected with work done under contracts. Even if the commissioners and employes were servants of the city, they were not so for ail purposes of a general character.

The commissioners were limited by the statute, and their engineers and other employes had specific .duties to discharge, and with the performance thereof the municipal authorities could not interfere. Although the work, when completed, would be for the benefit of the city, the commissioners were to act as an independent body. The city had no authority to contract for. meddle with, or do anything whatever connected with the work. It could not compel performance or supervise the acts either of the contractors or the commissioners; it could not appoint or remove any one employed by the commissioners; it could not hold the contractors or the engineers to any accountability during the progress of the work. Interposed between it and the contractors was this self-governing, distinct, and separate body, with limited powers, and with no right to incur any liability for the defendant exceeding that, or outside of that, provided for by contract. As said before, I am of the opinion that whatever claim the plaintiffs may have for work done or expense incurred by reason of alleged mistakes of engineers is altogether one under the contract. That the plaintiffs are entitled to compensation under the contract, and according to the rates established thereby, for all work ordered by the engineers in execution of the contract, whether on mistaken or correct lines and levels, may be conceded. That is a very different thing from a liability arising outside the contract. All the orders and directions of the engineers were given in prosecuting the work under the contract, and in the attempted and intended execution of the plans (originalor modified) and specifications, and, if we are correct in that statement, it would seem to follow that the provisions of section 30 of the contract preclude a recovery on the cause of action referred to.

Lawrence, J.,

I concur in this opinion on the authority of Maxmilian v. Mayor, 62 N. Y. 160.  