
    Messenger v. City of Buffalo.
    
      Public Contracts.—Extra Work.
    
    If a municipal corporation, by its own act, cause the work done by a contractor to be more expensive than it otherwise would have been, according to the terms of the original contract, it is liable to him for the extra work.
    * Appeal from the general term of the Supreme Court, in the eighth district, affirming a judgment-entered for the defendant on the report of a referee.
    The plaintiff entered into a contract with the City of Buffalo for the paving of Clinton street; the grading was to be done by the city. It was provided by the contract, that the street should be graded to a sufficient depth to réceive eighteen inches of lake sand, underneath the paving stone; the sand was to be furnished by the plaintiff, and to be of a uniform depth of eighteen inches. The work was to be done under the superintendence of the officers of the corporation. The employees of the city excavated the street to a depth that would require an average depth of twenty-two inches of sand, instead of eighteen, as provided by the contract. The officers of the city thereupon directed the plaintiff to furnish the extra sand to bring up the street to the established grade, which he did, at a cost of $462; and the only question in the case was, as to his right to recover this amount. The referee decided that the city was not liable; and the judgment on his report haVing been affirmed at *general term, the plaintiff took this appeal.
    
      Talcott, for the appellant.
    
      Wadsworth, for the respondent.
   Wright, J.

The defendant is^ not liable, if it did not, as a municipal corporation, contract with or authorize, in any way, the plaintiff to furnish the additional sand required to bring up the street to the grade which it had itself established. Undoubtedly, though a municipal corporation be charged with the duty of regulating and repairing the streets, no action will lie against such corporation, for repairs put upon them without its assent or authority. It may be doubted, however, whether, in all cases, to make the city of Buffalo liable for work done in improving its streets, its common council must necessarily contract for the doing of such work, and that none other of its agents or offigers have any authority in the premises. But assuming that the authority is only 'with the common council, the same power that contracts may assent to vary or modify the contract; that, I think, was, in effect, done in this case. It does not seem to be a case, where a contractor, not content with his contract, colludes with the subordinate officers of the corporation to obtain more than the price for which he has agreed to do -the work, in the way of extra compensation. It is rather one where extra labor was required to be performed by the contractor in the fulfilment of his contract, because of an act of the corporation itself, and which the contractor could not control.

• The contract of the plaintiff was to pave the street, and put * underneath the pavement eighteen inches of lake sand, for which he was to receive a stipulated compensation.- He had nothing to do with forming or grading the street, but that was the business of the city. The city did form and grade it in such a way as that it was impossible for the plaintiff to comply with the contract in regard to paving according to the established grade, "“and also in regard to the quantity of sand. The city had contracted for eighteen inches of sand under the pavement; but subsequently excavated and graded the street in such a way as to require twenty-two inches. That the pavement should be brought up to the established grade was the important point, and for the interest of the defendant, as the paving would otherwise have been useless. I think, therefore, that the city, in effect, consented to vary the contract in regard to the quantity of sand to be furnished. It was not necessary that such assent should be expressed by a formal resolution of the common council, but it may be implied from its acts relating to the particular work, subsequently to entering into contract with the plaintiff.

It is urged, that when the plaintiff found that he could not fulfil his contract in all its particulars, he should have obtained the action of the common council, before commencing or continuing the work. This could not have been absolutely required, to enable him to recover. The corporation had authorized the street commissioner to make the contract, and the contract made provided that the work should be done under the' direction of such commissioner ; this plainly intended that the street commissioner might direct in regard to variations rendered necessary by the action of the city authorities. Had the plaintiff insisted on doing the work in precise accordance with his contract, the street commissioner could have prevented it, or, at least, it would have been his duty to present the matter to the common council. Instead of doing this, however, he directed that the street should not be dropped below, but that extra sand must be furnished by the plaintiff to keep it at, the grade.

Under the facts found, I am of the opinion, that the plaintiff should have recovered. The city must be deemed to have impliedly assented to the alteration of the contract in respect to the quantity of sand to be furnished. The judgment of the supreme court should be reversed, and a new trial ordered, with costs to abide the event.

*Judgment reversed, and new trial ordered.

Davies, J., and Clerks, J., dissented.  