
    In the Matter of De Foe Construction Corp., Petitioner, v. Abraham D. Beame, as Comptroller of the City of New York, et al., Respondents.
    Supreme Court, Trial Term, New York County,
    April 23, 1973.
    
      McDonough, Schneider, Marcus & Cohn (Richard Marcus of counsel), for petitioner. Norman Redlich, Corporation Counsel (Morgan N. Lipton and Michael R. Pearl of counsel), for respondents.
   Edwabd J. Ubeehfield, J.

This is an application to compel respondent Highway Commissioner to issue a proper voucher and thereafter to compel the City Comptroller to issue a warrant for amounts owed to the petitioner pursuant to a contract to repair an underpass which was amended to include authorized extra work.

The contract included a set unit price for “Neat Cement Grout” at 50 cents per pound. Upon commencement of the work it was found that the method originally planned would not he appropriate or feasible and so the respondents authorized extra work for the change. Included in this extra work was the need for 131,412 pounds of “Neat Cement Grout” instead of the original estimate of 10,000 pounds. It is the respondent Highway Commissioner’s contention that, in its discretion and pursuant to article 26 of the contract, the payment for this extra work .should be at 50 cents per pound for the first 20,000 pounds and 23 cents per pound for the remainder of 111,412 pounds.

Pursuant to article 26 of the contract, ‘ ‘ Extra work for which there are applicable contract unit prices will be paid for at such unit prices. Where there are no applicable contract unit prices, subject to audit and revision by the Comptroller ” the amount shall be computed by a specified formula. Since there was a set contract unit price for the cement grout and since there was no agreed change of that amount, the petitioner is entitled to be paid for the 131,412 pounds at 50 cents per pound.

Respondents have an obligation, as public officials and agencies of the city government, to act legally and to faithfully perform every contract (Administrative Code of City of New York, § 343-1.0). Therefore, any action, as is involved herein, which is clearly contrary to the contract and illegal, is reviewable as being arbitrary and capricious. Accordingly, the petition is granted and the respondents are directed to issue the necessary documents providing for payment. Settle judgment.  