
    James Brady, App’lt, v. The Mayor, etc., of the City of New York, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. New York (city of) Consolidation Act—Laws 1882, chap. 410, § 64— Contract for work, etc . on public buildings—Necessity of— Certificate of public officer.
    As between the contractor and the city, the certificate of the proper officer is conclusive as to the necessity of the work to be done, or the supply to be furnished, to complete or perfect a particular job, where there is no allegation of fraud or collusion, and where the facts indicate that the necessity certified was a possible incident of the work to be done or the supply to be furnished.
    2. Same—Necessity of work—When question for board of park com-Mr'TONERS.
    The department of public parks in the city of New York had awarded to the plaintiff as the lowest bidder, under Laws 1882, chap. 410, § 64, a contract for the construction and materials of the Mount St. Vincent restaurant in Central Park. By the contract certain floors, etc., were to be of pine, and the plaintiff was to lee ive $29,740. Afterwards the wood of said floors was changed to cherry, and it was agreed that plaintiff should have $975 more, which he estimated would be the difference in the price of these floors done with cherry over them when done with pine. Meld, that looking at the situation with its surroundings, such reasonable necessity for the change existed as to call into play the judgment of the board. That the wisdom or prudence of its exercise was not reviewable.
    3. Same—When work does not cost oyer $1,000'.
    • The change did not involve an expenditure of more than $1,000. The price of the pine which plaintiff was released from furnishing should not be added to the $975 in determining whether the change involved an expenditure of over $1,000.
    Appeal from a judgment of the general term of the superior court of New York city reversing a judgment in favor of the plaintiff entered upon findings and conclusions made by a judge in a case tried by consent before him without a jury.
    
      George G. De Witt, Jr., for appl’t; D. J. Dean, for resp’t.
    
      
       Reversing 10 N. Y. State Rep., 459.
    
   Finch, J.

The reversal by the general term is sought to be sustained by two propositions argued on behalf of the city: first, that no necessity existed for the change authorized by the new or supplemental contract, and, second, that it involved an expenditure of more than $1,000, and so was invalid unless submitted to public competition. Our judgment is adverse to both propositions.

The law requiring contracts on behalf of the city to be founded on sealed bids or proposals describes its own application thus: “ Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than $1,000.” The new contract here was to substitute cherry for pine in the hall,, vestibule, cafe and wine room, and for newels, balusters and rails of the principal staircase in the Mount St. Vincent restaurant, which was being constructed in the Central Park. The first inquiry is who is to ¡judge of the necessity, and what is the effect of that judgment. The same section which prescribes the necessity (Consol. Act, § 64), also requires that it shall be certified to by the head of the appropriate department. That certificate was made in this case, but is now asserted to be in no respect conclusive, and to-leave open the question whether the particular necessity existed. As between the contractor and the city, the certificate of the proper officer is certainly conclusive where there is no allegation of fraud or collusion, and where the facts indicate that the necessity certified was a possible incident of the work to be done or the supply to be furnished. We ought not to review or reverse the conclusion of the officer specially charged with the determination of the question where we can see that the facts called for the exercise of his judgment, and that a reasonable necessity might by possibility have existed. We think that was the situation in the present case. A restaurant for the use and convenience of the public was being erected in the Central Park. Upon that park large sums have been expended to enhance ■its attractions, and make it not only useful but beautiful.'

Much of that expenditure has been necessary, not in the hard and narrow sense of the word, but relatively to' the standard of taste and beauty adopted as the controlling guide. Much was reasonably to be deemed necessary there which elsewhere could not be, and would verge upon pure extravagance. A restaurant in that park should not disgrace the standard of its surroundings. It was better not-to build it at all than with a cheap parsimony and bad taste. These considerations might rightfully influence the constructing board and take their place among the reasonable necessities of the work. In their plans the main vestibule and cafe, and even the principal staircase, were to be finished in pine. Undoubtedly, when so finished, the job would be “complete,” but would it also be “perfect”?' Great changes have come about in the construction of interiors. The use of hard woods has become the rule where any degree of elegance is sought, and a cafe, in the Central Park, finished in pine even to the staircase rails- and balusters, might well be deemed unfit and inappropriate, not only as it respected its appearance but also its durability. During the pleasant months it would probably foe thronged, and the evidence shows that the pine would yield and wear, while the cherry would remain permanent and durable. Looking at the situation, with its surroundings, I think such reasonable necessity for the change •existed as to call into play the judgment of the board. The wisdom or prudence of its exercise we are not called upon to discuss.

The remaining question is whether the change ordered and made involved an expenditure of over $1,000. The general term has so held upon the ground that to the $975, which was the contract price of the change, must be added the cost of the pine fitting under the original contract. We think that is a mistaken view. The original contract was to be performed for about $29,000. That was founded upon sealed bids, and included the fitting of the rooms and construction of the staircases. The contractor was not released from that work, and did perform it, and so was entitled to his full pay under the old or original contract. If he had used cherry, without any arrangement for an extra compensation, he would simply have completed the original contract for the original price.

The supplemental contract was for extra work and material beyond the original contract price, and the price of that was simply the $975. I think we may see it in another way by the inquiry, how much of additional expenditure was incurred by the change. The $29,000 was payable for the work of the original contract. That required doors, archtraves, bases and staircase. All these were built and furnished and the contract-price thus earned, but an additional expenditure of $975 was involved in the change ordered from pine to cherry. The total expenditure was increased only by the value of the extra material and labor beyond that already covered by a valid contract; and the two contracts together when both were fulfilled did not add to the original and authorized expenditure more than $1,000. The order made related to and covered only the excess of value due to the extra work and material. The price of the pine and its fitting went as far as it could in paying for the ■cherry and its fitting and the new contract began and its expenditure commenced at the point where the old one was exhausted. Viewing the matter thus we think the contractor should have his pay which he has fairly earned.

The order of the general term should be reversed and that of the special term of the superior court be affirmed, with costs.

All concur.  