
    The People of The State of New York ex rel. Charles W. Grannis and William T. O’Connor, Respondents, v. James A. Roberts, as Comptroller of the State of New York, Appellant.
    
      Mandamus—to compel payment for work done on the State canals—excmation of rock in excess of the estimate—error in the report of the division engineer — the Superintendent of Public Works may act on the certificate of the Deputy State JSngineer — the Comptroller does not act judicially — the remedy by action in the Court of Claims does not bam mandamus—avoidance of the. contract by the State.
    
    Section 4 of chapter 79 of the Laws of 1895, as amended by chapter 794 of the Laws of 1896, relative to the improvement of the canals, under the constitutional amendment, provides that the work shall be done by contract let to the lowest bidder, and that no work should be contracted for “ until the state engineer shall have ascertained, with all practicable accuracy, the quantity of embankment, excavation, masonry, the quantity and quality of all materials to be used, and all other items of work to be placed under contract, and a statement thereof,.with the maps, plans and specifications, corresponding to those adopted by the canal board and on file in the office of the state engineer, is publicly exhibited to every person proposing, or desiring to make a proposal for such work; "and .that the quantities contained in such statement shall be used in determining the cost of the work according to the different proposals received.
    In making estimates of the work preparatory to advertising for bids under this act, the State Engineer, in reliance upon information furnished him by a division engineer, stated the amount of dry excavation of rock to be 100 yards, while the actual amount of such excavation was in excess of 20,132 yards. The discrepancy arose from the fact that the notes of an assistant engineer showing the existence of rock had been mislaid in the division engineer’s office. There was no collusion between the contractors with whom the contract was made and any of the State officers, either in the inception or in the execution of the contract, and it did hot appear that the bid of the contractors,' tested by the quantities of excavation actually necessary, was not the lowest bid.
    
      Held, that the State Engineer was entitled to rely upon the information received by him from the division engineer, and that the failure of the contractors to disclose to the State Engineer their discovery of the existence of a large quantity of rock before submitting their bid did not constitute fraud, rendering the contract void;
    That the necessity of excavating a much greater quantity of rock than was contemplated did not involve a change of plan, to which the assent of the Canal Board was necessary under section 4 of the act;
    
      That under sections 5 and 6 of the act, which provide that the Superintendent of Public Works may, from time to time, upon the certificate of the State Engineer and Surveyor, pay to the contractor a sum not exceeding ninety per cent of the. . value of the work performed, and that the moneys appropriated for the work shall be paid “ by the treasurer on the warrant of the comptroller to the order of the superintendent of public works when certified by that officer to be needed from time to time in the prosecution of said work,” the duty of the Comptroller is not judicial in its natu-re;- and where he refuses to honor drafts drawn upon him by the Superintendent of Public Works in payment of moneys due on such a contract, the contractor is entitled to a peremptory writ of mandamus requiring the Comptroller to issue his warrant upon the Treasurer for thé amount of such drafts, and is not obliged to file his claim in the Court of Claims under section 264 of the Code of Civil Procedure.
    A defense that the contractors have an adequate remedy inthe right to a determination Of their claim by that court should be set up in the return to the application, and the objection cannot be taken for the first time on the trial.
    It is not an objection, available to the Comptroller, that the certificates upon which the Superintendent of Public Works acted in making the drafts in question were signed by the Deputy State Engineer and Surveyor, as section 61 of the Executive Law (Laws of 1892, chap. 683), authorizing the appointment of such deputy, provides that he may perform all the duties of the State Engineer and Surveyor, except as commissioner, trustee, or member of any board.
    
      Quiere, whether the State might, upon discovery of the discrepancy between the estimated, and the actual quantity of rock, have obtained relief by stoppage of the work or might in equity have obtained rescission if it had been applied for before performance.
    Appeal by the defendant, James A. Roberts, as Comptroller of the State of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany oh the 13th- day of June, 1899, confirming the report of a referee' and awarding a peremptory mandamus in default of payment of certain sums, the balance unpaid upon three certain drafts drawn by the Superintendent of Public Works upon the Comptroller in payment of moneys claimed to be due on a contract made by the superintendent in the name of the People with the relators for the doing of certain work on the' improvement of-the Erie canal, also awarding certain damages and costs.
    An alternative writ was issued, in the first instance, to which the defendant made return, and the issues so made were referred to a referee to hear and determine.
    
      John C. Davies, Attorney-General, for the appellant.
    
      Baldwin & Magee and Frank Hiscock, for the respondents.
   Merwin, J.:

By chapter 79 of the' Laws of 1895 provision was made for submitting to the People of the State at the next general election the proposition to raise $9,000,000 .for the purpose of enlarging and improving the Erie, Champlain and Oswego canals. In the event of the adoption of the proposition provision was made for raising the money by the issuing and sale of bonds of the State, and within three months after the issuing of bonds the Superintendent of Public Works was directed to proceed to the execution of the work, which was to be done in accordance with plans, specifications and estimates prepared and approved by the State Engineer and Surveyor. By section 4 of the act, as amended by chapter 794 of the Laws of 1896, it was provided that all the work should be done by contract entered into by the Superintendent of Public Works on the part of the State after certain advertisements, and should be let to the lowest responsible bidder, giving such security as the superintendent may require and approve; that none of the work should be contracted for “ until the state engineer shall have ascertained with all practicable accuracy the quantity of embankment, excavation, masonry, the quantity and quality of all materials to be .used, and all other items of work to be placed under contract, and a statement thereof, with the maps, plans and specifications, corresponding to those adopted by the canal board and on file in the office of the state engineer, is publicly exhibited to every person proposing, or desiring to make a proposal, for such work; ” that the quantities contained in such statement shall be used in determining the cost of the work according to the different proposals received; that no change of plan which shall increase the expense of any such work shall be made without its submission to the Canal Board and their assent thereto; that the superintendent after bids are opened may cancel all of them and readvertise. By section 5 of the act of 1895, as amended in 1896, it is provided that the superintendent may.,, from time to time, upon the certificate of the State Engineer and Surveyor, pay to the contractor a sum not exceeding ninety per cent of the value of the work performed. By section 6 of the act of 1895 $4,000,000 of the moneys realized from the sale of bonds is appropriated to be expended tO' carry out the purposes of the act, “ Said sum of four million, dollars to be paid by the treasurer on the warrant of the comptroller to the order of the superintendent of public works when certified by that officer to be needed from time to time in the prosecution of said work.” An appropriation in like form is made by chapter 569 of the Laws of 1897.

The proposition submitted to the people having been by them adopted, the Superintendent of Public Works proceeded to carryout the provisions of the law. On the 23d day of January, 1897, in the name of the State, he made a contract with the relators for the performance by them of a certain portion of the work of the improvement on the western division of the Erie canal, being the work to be done for a distance of about seventeen miles. This contract was made after an advertisement for bids, and the relators were the lowest biddei-s. In the engineer’s estimate of quantities, from which the bidding was- mac(e, it was, among other things, stated that the quantity of dry excavation of rock was 100 yards. In the proposal of the relators and in the contract the price for dry excavation of rock was stated to be three dollars per cubic yard. It was provided in the contract that dry excavation of rock will include the removal of all solid or ledge rock and hard pan which, in the opinion of the resident engineer, cannot be plowed ; that the fesi. dent engineer shall in all cases determine the amount or quantity of the several kinds of work which are to be paid for under the contract ; that in case the execution of the contract shall be suspended by the State for any cause, no claim shall be made for prospective profits'on work not done; that the State reserved the right to increase or diminish the amount or amounts of any class of work from -the amount shown, on the bidding sheet, in which case the amount of work required shall be done at the rates named in the contract, and no claim shall be made for damages or prospective profits by reason of such increase or diminution.

The relators thereupon entered upon the performance of their contract, and monthly estimates of the amount of work done were from time to time made,, and prior to April 13, 1898, the date, of the first draft in controversy, there had been paid to the contractors by the Comptroller upon the orders of the Superintendent of Public Works for work done up to March 1, 1898, the sum of $157,932. This was ninety per cent of the work done according to the estimates of the resident engineer. ■ In the estimate for work done up to May 1, 1897,'there were included 310 cubic yards dry excavation of rock. In the estimate r for work to August 1, 1897, this item had increased to 1,094 cubic yards, and it continued to increase so that in the estimate for work up to March 1, 1898, it reached the total amount of 9,056 cubic yards.

According to the estimate of the work done up to April 1, 1898, there was then due the relators, of the ninety per cent payable under the contract, the sum of $43,794, and for this amount the first draft in controversy was drawn. The estimate for work up to May 1, 1898, called for the further payment of $38,727, and for this the second draft'in controversy was drawn. The estimate up to June 1, 1898, called for the further payment of $3,573, and for this the other draft in controversy was drawn. The dry excavation of rock had then reached the total amount of 20,132 yards. The- work has never been fully completed by reason of the exhaustion of the appropriation therefor and the consequent suspension of the work. The amount that remains to be done does not appear.

Upon presentment of these drafts to the Comptroller he declined to pay the full amount thereof upon the ground that there had been an improper classification of rock. He subsequently paid portions of each draft, leaving a balance unpaid thereon of $33,228, which is the amount he is directed to pay in the order appealed from, and the interest thereon is allowed as damages under section 2088 of the Code of Civil Procedure.

The main question upon the merits of this case is based upon the great disparity between the amount of the estimate of dry excavation of rock in the quantity sheet exhibited to bidders and the amount as afterwards found to exist.

In the return of the defendant and on the trial it was claimed by the defendant that by the fraudulent procurement of the relators a large amount of excavation was classified as rock excavation when it should have been classified as dry excavation of earth, the price of which under the contract was twenty-three and three-fourths cents per yard. Upon this subject the referee has found that the classification complained'of was tirade by the resident engineer, the officer charged by the contract with that duty, upon an inspection of the rock and hard pan as it lay in mass and after applying proper tests to determine whether it'should be classified as rock or earth, without any fraud or collusion on his part with the relators; and that such, classification was just and fair to both the contractors and the State and received the approval of the State Engineer and Surveyor. Upon the evir dence we find no good reason for disturbing this conclusion. ■

We come then-to the consideration' of the, circumstances, connected with the disparity between the estimate and the fact as to rock excavation, as they may have a bearing on the validity,of the contract. We assume that the Comptroller has a right to raise the question that the contract is for any reason illegal or invalid. (People ex rel. Merriam v. Schoonmaker, 13 N. Y. 238; Laws of 1897, chap. 413, § 4, subd. 5.)

It appears that in March, 1896, according to the instructions of the State Engineer, and for the purpose of ascertaining the different kinds and amounts of work to be'done, a preliminary survey of the locality in question was made preparatory to making the estimates; that one of the assistant engineers discovered a large amount of rock and hard pan that would have to be removed, and his notes showing such facts were left in the office of the division engineer but were mislaid, so that when the division engineer came to make up for the State Engineer the quantity sheet for exhibition to bidders, the notes showing the amount of rock excavation were not discovered, and the division engineer after examining the completed cross sections that had been platted and calculated, and examining the papers or notes which he found in his office and which showed no reference to rock, decided to put in 100 yards as the amount of rock. There was proof that neither the State Engineer nor Superintendent of Public Works had any knowledge or information that there was more rock to be. excavated than was specified in the quantity sheet, and that the State Engineer in making the statement to the superintendent of the amount of rock excavation relied upon the correctness of the information forwarded to him by the division engineer. The referee finds- that the State Engineer, prior to. advertising for bids ascertained with all practicable accuracy the quantity of embankment and masonry, the quantity and quality of all materials to be •used and all other items of work' to be performed, and that a statement thereof with the maps, plans and specifications, corresponding to those adopted by the Canal Board, were publicly exhibited to any one desiring to bid.

It also appears that the relators, before bidding, went over the ground, were satisfied that there was roclr to be excavated, did not estimate the amount, but thought there were a good many thousand yards. There were several bids, but it does not appear that there .was any bid on dry excavation of rock lower than the bid of the relators. Hor does it appear that the bid of the relators, testing it by the -quantities as they in fact were, was not the lowest bid.

There was evidence on the part of the defendant that the fair market value or price of excavation such as was classified here as dry excavation of rock did not exceed one dollar per yard, while on the part of the relators there was evidence that it was fairly worth two dollars and fifty cents a yard.

The referee finds that the contract was made without any fraud, connivance or collusion on the part of the relators or any of the State officers, and that the execution of the contract was free from any fraud or collusion whatever.

■ It is claimed by the defendant that the contract was fraudulent in its inception, and especially so since it appears that the relators are attempting to recover so large an amount of money from the State at an excessive price for the rock excavation.

If the contract was valid the question of price is not an open one. The State is bound to perform its valid contracts. The referee finds that there was no fraud in the inception of the contract, and there is nothing in the case to overcome that conclusion unless the fact that the relators did not disclose to the State officers their information of the existence of a large quantity of rock constitutes fraud in law. Our attention is called on this subject to the case of Matter of Anderson (109 N. Y. 554). That was- a proceeding to reduce an assessment for a local improvement. The bid accepted was an unbalanced one, and, although the lowest upon the estimates' presented, it was next to the highest upon the quantities in fact existing. The bid was two cents per cubic yard for rock excavation and one dollar and sixty-two and one-half cents for earth excavation. This was said to be suggestive of fraud upon its face, and it was held to be a just inference from the facts that the contract was the result of fraud and collusion. The case here is materially different, and the subsequent case of Reilly v. Mayor, etc. (111 N. Y. 473), seems to be more applicable. That was an action against the city of New York by a contractor to recover for work done and materials furnished under a contract to grade a street. The estimates differed materially from the actual work done, and, at the prices bid, if the actual quantities had been correctly stated in the estimates, the plaintiff’s bid would have been the highest instead- of the lowest. It was held that the contractor had a right to the benefit of his own knowledge honestly acquired so long as he did nothing to mislead or deceive the city, although he knew the estimates to be erroneous, and relying on his judgment made an unbalanced bid which gave him the contract as the lowest bidder, while the result of the work showed that he was the highest; that the lowest bidder upon the estimates does not lose his right.because the estimates are erroneous ; that he may lose it through fraud, but,-if guilty of none, the city cannot urge against him its own ignorance or error.

The Reilly case would seem to be decisive against the proposition that the failure by the relators to disclose their information, indefinite as it was, was a legal fraud. They did nothing to mislead .or deceive the State officers and were in no way responsible for or connected with the mistake or error in the quantity sheet. Neither party expected that the estimates were strictly accurate. The State, in the contract, made special provision for having the right to increase or diminish the amount of any class of work, to be done, however, at the same rates. In the Reilly case it was also held-that the validity of such a contract, so far as affected by the law or ordinance requiring the quantities to be ascertained as near as possible does not depend upon the accuracy of the officer charged with the duty of making the estimates, but upon an honest effort on his part to be accurate. Here the State Engineer, the officer charged by the statute with the duty of ascertaining with all practicable accuracy, made an honest effort, no doubt, to be accurate. It is hardly .claimed to the contrary. He had a right to rely upon the information received by him from the division engineer, whose duties are prescribed by statute. (The Canal Law, Laws of 1894, chap. 338, § 52.)

The variance here is a large one and the State is called upon to pay a large price for some of the work. Still, that is the contract, and the State, in its contracts with individuals, -must be judged and must abide by the same rules which govern in similar cases between individuals. (People v. Stephens, 71 N. Y. 527.) It may be that the State might, upon discovery of the discrepancy, have obtained relief by stoppage of the work, or might in equity have obtained rescission if it had been applied for before performance. But that was not done. It appears in the case that the expense of the relators in carrying on the work is largely in excess of the amount that they have thus far received.

The defense that the contract was mvalid is not, I think, made out.

It is further claimed in behalf of the defendant that the .relators are not entitled to a peremptory writ of mandamus for the reason that "they have an adequate and complete remedy by action, in that they have the right under section 264 of the Code of' Civil Procedure to file in the Court of Claims and have there determined any claim they may have against the State for breach of the contract in question. Assuming that they have such right, it is not clear that the remedy is so adequate or complete, depending as it does upon the future action of the Legislature as to the payment of any judgment that may be recovered, that it would preclude a resort to the remedy by mandamus. Besides, no defense of this kind is set up in the return, which upon this subject is to be deemed an answer, (Code Civ. Proc, §§ 2077, 2082.) The proceeding is treated as an action. That being so, this defense to be available must be set up in the pleading and it is too late to first take the objection on the trial. (Crisfield v. Murdock, 127 N. Y. 315.) The same reason for applying the rule exists in this proceeding as in an action.

It is further claimed that the action of the Comptroller was judicial in its nature and that he cannot be compelled by mandamus to decide in any particular way or to audit the account claimed by the relators. This is upon the theory that the Comptroller was the auditing officer. We think that he was not.

Under the statute the Comptroller was not called upon to audit the account. That duty was not imposed upon him-. The amount was definitely ascertained before the draft was drawn on the Comptroller. The duty of payment was upon the Superintendent of Public Works, the method of payment was by draft on the Comptroller. The payment by the Treasurer upon the warrant of the Comptroller was to be. made to the order of the superintendent when certified by him to be needed from time to time in the promo: tion of the work. This was in substance done and the Comptroller had no discretion as to the amount.

It is further objected by the defendant that the certificates, upon which the Superintendent of Public Works acted in making, by the drafts in question, payments under section 5 of the act of 1895 (Chap! 79), as amended in 1896 (Chap. 794), were not signed by the State Engineer and Surveyor personally, but by the Deputy State Engineer and Surveyor. By section 61 of the Executive Law (Chap. 683, Laws of 1892) the State Engineer and Surveyor was directed to appoint a deputy, who may perform all ■ the duties of the State Engineer and Surveyor except as commissioner, trustee or member of any board. This authorized the deputy to execute the certificates in question.

. It is further-argued by the defendant that the large .increase of the quantity of rock excavation involved a change, of plan and was .not permissible without the assent of the Canal Board. The plan, so called, is not in the case. Under the specifications, all the material within the limits of the construction section to certain lines and grades was to be removed. This constituted the excavation con.templated by the contract. The plan was to remove the whole material, whatever it was, and it was not affected or changed by the fact that the relative quantities of the different kinds of material were different from what was supposed to exist.

Ho- other questions are presented. Ko fault is found with the form of the order. We assume that the award of a mandamus is limited, as specified in the report of the referee, to the amount unpaid on the drafts.

All concurred.

Order affirmed, with costs.  