
    Charles F. Mairs and Matthew C. Lewis, Respondents, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
      'Contract—-delay caused by a pipe in a bay where a contractor has agreed to build a crib—it is covered by the. words “unforeseen obstructions” and “incumbrances” — the waiver of a claim for liquidated damages is not an admission of liability for other damages.
    
    The specifications of a contract made with the city of New York for the construction of a crib fender for a drawbridge in Pelham bay, provided that the contractor must satisfy himself of the correctness of the soundings shown on the plans, as the park department, which was in charge of the work, would not be responsible for any discrepancies, and that “ All loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, * * * or from incumbrances on the line of the work, * * * shall be sustained by said contractor.” During the progress of the work it was discovered that a water pipe lay upon the bottom of the bay in such a position that if the crib fender were placed according to the specifications it would . rest upon the pipe and be likely to break it. This pipe had been laid several years before by a private corporation under the supervision of the superintendent of engineers of the city and of an inspector appointed by the park ■department, pursuant to a license given by the latter to lay. the pipe across the hay '■ at or near the bridge, * * * and continuing southly along the line of Pelham Ed.”
    
      It did not appear that there was any map in the archives of the park department showing the location of the pipe with reference to the fender to be built across, the bay, or that the park department had actual notice of its location before the work was begun.
    In an action brought by the contractor against the city to recover damages which had resulted to the contractor from the delay in the work of placing the fender caused by the existence of this pipe,
    
      Held, that the case came within the provision of the specifications that all loss or damage arising “from any unforeseen obstructions or difficulties” which, might be encountered should be borne by the contractor;
    That if the park officials might have known, but did not know the location of the pipe, the case came within the provision of the specifications that all loss- or damage arising from any “incumbrances on the line of the work” should be sustained by the contractor;
    That the fact that on the settlement with the contractor the city officials did not claim liquidated damages, under a provision of the contract entitling it to do-so in the event of any unnecessary delay in the completion of the work, did not operate as an admission that the city was responsible for such delay.
    Patterson, J., dissented.
    Appeal by the defendent, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme: Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of January, 1900, upon the verdict of a jury rendered by direction of the court.
    
      Theodore Connoly, for the appellant.
    
      L. Laflin Kellogg, for the respondents.
   Rumsey, J.:

On the 24th of October, 1896, Mairs made a contract with the city of Hew York to build and place a crib fender for the Pelham . river drawbridge' in Pelham Bay Park. The work consisted of placing a crib fender in a branch of Pelham bay so that the ends-of the drawbridge spanning the branch could rest upon it when the bridge was opened. To accomplish that' purpose it was necessary that the fender should rest upon the bottom of the bay and there be fixed in such a way that it would be firm and immovable. Mairs began work shortly after the contract was signed, and continued it until the 15th of December, 1896, when it was discovered for the first time that a water pipe of the Hew York and Westchester Water Company lay upon the bottom of the bay in such a position that if the fender was placed according to the specifications it would rest upon the pipe and would' be likely to break it. Upon discovering that fact Hairs gave "notice to the park department, which was in charge of the work, and negotiations were had from time to time between him and the water company and the park department so that the work was delayed forty-three days before arrangements were finally completed by which the fender could be. placed. During those forty-three days Mairs had present barges loaded with stone and other material necessary for the work,; and he also retained in his employment the men he had hired for that, purpose. He brought this'action to recover the damages which he had suffered by being prevented from doing the work arid being compelled to pay demurrage and the wages of his' men. during the time he was unable to. proceed with the - work. At the close of the trial the learned trial justice directed a verdict for the plaintiff, upon which judgment was entered, and from that judgment this appeal is taken.

The plaintiffs claim that'the defendant was liable for the increased expense to which the contractor was put because of this delay for the reason that they had permitted the pipe of the water company to be located in the place where the fender was to be put, and that they were aware of its location and failed either to remove the pipe or to change the specifications in such a way that the contractor could go on with his work. The defendant^ on the contrary, claims that the plaintiff Hairs, under the terms of the contract, took the risk of the existence of the pipe and of any other obstruction or incumbrance upon the bottom of the stream, and that it was his duty to ascertain its existence, and, as he failed to do so, he cannot now hold the defendant liable for the damages which resulted.

The contract was made upon the usual estimates and specifications. The advertisement for estimates provided that the bidders must satisfy themselves, by personal examination of .the location of the proposed work as to the accuracy of the engineer’s estimate. It was provided in the specifications that the soundings shown on the plans had been made with thoroughness' and care and were believed to be correct, but that the contractor must satisfy himself of their accuracy, as the park department would not be responsible for any discrepancy between those shown on the plans and any others which might be made. The specifications further provided that “ All loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen obstructions or difficulties which maybe encountered in the prosecution of the same, * * * or frQtn incumbrances, on the line of the work, * * * shall be sustained by said contractor.”

It appeared that on the 24th day of July, 1891, permission had been given by the park board-to place this water pipe through Pelham Bay Park across the bay “ at or near the bridge * * * and continuing sonthly along the -line of Pelham Rd.” It was directed that the laying of the pipe should be done under the superintendent of engineer’s and the supervision of an inspector to be appointed - by the park department to be paid by the water company. While there is no evidence as to just what was done under this license, it is to be assumed of course that the work in a general way was completed under the supervision of the superintendent of engineers of the city and the inspector appointed for that purpose. But it does not appear, nor do I think it is fairly to be inferred from anything in the case, that the park department had or ought to have had knowledge of the precise place where the pipe had been laid or the situation it occupied with reference to the fender which was to be built by Hairs. The license did not establish any particular location for the pipe, but it was general in its terms in permitting it to be laid across Pelham bay.“ at or near the bridge,” and it did not. specify any more particular location; nor was there any rule that the precise spot on the bottom where the pipe was laid was to be shown on any map in the archives of the park departmentnor was there any reason why,-so far as I can discover, the park department should have been expected to know of the precise location where this pipe was sunk o-r to have any more exact knowledge on that point than any one else. Just where it lay was easily to be ascertained by soundings to be taken by Hairs, for he had notice that the' soundings taken by, the city, for whatever purpose they were made, were not to bé relied upon, but were to be verified by him. That being so, it seems to me that the case was precisely within section 14 of the specifications by which all loss or damage arising “ from any unforeseen obstructions or difficulties which may be encountered ” was at the peril of the contractor.

Bnt if .that be not so, and if the location of the pipe was such that the city officials might have known of it, still it is quite clear that the park department did not know of it any more than the contractor did and that the difficulty arose from the incumbrance of the pipe which was discovered after the work had been begun, and that brings it precisely within the other provision of the specifications that loss or damage arising from any “ incumbrances on the line of the work” was to be sustained by the contractor. The word " incumbrances ” there must necessarily be construed as intending anything which being discovered would prevent or delay the contractor in the performance of his contract. It necessarily included everything in the line of the work which had'that effect. There was ho warranty by the city that the line of the work was free from incumbrances, and it was expressly provided that, if any were discovered, loss or damage to the contractor by them was to be sustained by him. I do not see any escape from the conclusion that whether it was an unforeseen obstruction or not, it was clearly an incumbrance and was thus precisely within the terms of the contract.

There is nothing in the case of Horgan v. Mayor (160 N. Y. 516) that militates against this conclusion. In that case the plaintiff had agreed to clear and concrete the bottom of a park lake for the city of Hew Fork, and the contract contained provisions that the contractor should drain off all the water and that he' should furnish all pumping and bailing required for that purpose and should . satisfy himself as to the nature and the amount of the work to be done by a personal examination. There was an outlet pipe in the bottom of the lake apparent to the contractor, and he had the right to suppose that he could use that outlet to drain the water from the pond. When he attempted to drain off the water he found that the sewer into which the pipe drained was obstructed so that a considerable amount of the water in the pond would not run off through it,, and the contractor was consequently compelled to pump out the water, and he claimed to recover the increased cost of doing that work. It was held that as the outlet pipe if it had been in order would have been sufficient to draw off the water, the plaintiff had a right to rely upon the fact that it was so and could be used for that purpose, and that it was' the duty of the city so to keep the pipe, and that, if it failed to do its work, because it was out of order the city was liable for the damages caused by that failure. In respect of the agreement that loss or damage arising from any unforeseen obstruction or from any incumbrance in the line of the work should be sustained by the contractor, it was held that the unforeseen obstructions and the incumbrances intended were those which might be encountered during the progress of the work under the contract, and not those which might be encountered because of the failure of the appliances, furnished by the city for the use of the contractor, to-accomplish the purpose for which they were designed. 'That case, therefore, is not an authority against the defendant in deciding the one at bar, but rather if it is to be considered at all it tends to show that the construction of this contract claimed by the defendant was the proper one.

By the contract the city was at liberty to charge Hairs with certain liquidated damages because of any unnecessary delay that might occur in doing the work. In the settlement with him. the city’s officers did not see fit to charge him for the delay while waiting for some arrangement to be made about the pipe, but allowed him the forty-three days during which the delay continued.. On that account it is said that the fact that they allowed him the forty-three days operates as an admission on the part of the city that it was responsible for that delay. But it cannot be said' that if the city saw fit to waive its right to charge liquidated damages against him, that that is any reason why it should be. charged with damages for which it is not responsible.

For these reasons the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham and McLaughlin, JJ., concurred; Patterson, J., dissented.

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