
    John G. O’Keeffe, as Receiver of the Property of the Matt Taylor Paving Company, Appellant, v. The City of New York, Respondent.
    
      Contract for paving a city street — requirement that it be kept in repair for fifteen, yea/rs and that part of the contract pi'ice be reserved to secure it—pi'oof as to-repair required of the contractor suing for a reserved installment.
    
    Where the expense of regulating and paving a city street is to be defrayed out, of the general fund and not by assessments upon the abutting property owners, the city may, even in the absence of express authority from the Legislature, insert in the contract for the performance of the work provisions requiring the contractor to maintain the pavement in repair for a period of fifteen years, and entitling the city to retain as security for the performance of this obligation thirty per cent of the contract price, such thirty per cent to be paid in ten annual installments of three per cent, beginning with the expiration of the. sixth year.
    
      Where the complaint, in an action brought by the contractor to recover one or more of the annual installments of three per cent due after the expiration of the sixth year, alleges that the contractor fully and substantially performed the contract, and these allegations are denied by the answer, it is incumbent upon the contractor to show, not only performance of the original contract work, but also that he has complied with his obligation to keep the work in repair.
    Appeal by the plaintiff, John G. O’Keeffe, as receiver of the property of the Matt Taylor Paving Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 14th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Yew York Trial Term.
    
      Henry H. Hotchkiss, for the appellant.
    
      Theodore Gonnoly, for the respondent.
   Laughlin, J. :

The plaintiff brings this action as the receiver of the Matt Taylor-Paving Company to recover five annual installments under a contract made between said company and the city of Yew York on the 26th day of December, 1890, for regulating and paving with asphalt, the carriageway of Sixty-sixth street from Lexington avenue to Third avenue, and Sixty-seventh street from Lexington avenue to Third avenue. The specifications which were made a part of the contract provided that seventy per cent of the contract price would be paid on the completion and acceptance of the work, and the remaining thirty per cent in ten annual installments of three percent each beginning with the expiration of the sixth year, provided, the contractor should perform the work stipulated under section 13a. of the specifications.

Section 13a provided that if at any time during the period of fifteen years from the date of acceptance “ the said work, or any part or parts thereof, or any depression, bunches or cracks shall, in the opinion of said Commissioner, require repairs, and the said Commissioner shall notify the said party of the second part (the contractor) to make the repairs so required by a written notice to be served on the contractor either personally or by leaving said notice at his residence or with his agent in charge of the work, the said party of the second part shall immediately commence and complete the same to the satisfaction of said Commissioner; and in case of failure or neglect on his part to do so within forty-eight hours from the date of the service of the aforesaid notice, then the said Commissioner of Public Works shall have the right to purchase such materials as he shall deem necessary, and to employ such person or persons as he may deem proper, and to undertake and complete the said repairs, and to pay the expense thereof out of any sum of money due the contractor, or retained by the said party of the first part (the city) as hereinafter mentioned. And the parties of the first part hereby agree, upon the expiration of the said period of fifteen years, provided that the said work shall at that time be in good order, or as soon thereafter as the said work shall'liave been put in good order, to the satisfaction of the said Commissioner, to pay to the said party of the second part the whole of the sum last aforesaid, or such part thereof as may remain after the expenses of making the said repairs in the manner aforesaid shall have been paid therefrom. And it is hereby further agreed between the parties hereto that if the termination of the said period of fifteen years after the completion and acceptance of the work done under this agreement shall fall within the months of December, January, February or March, then and in that case said months of December, January, February or March shall not be included in the computation of said period of fifteen years during which the work is to be kept in repair by the contractor as aforesaid ; and also in that case the payment to be made under the provisions of this paragraph shall not be made before the 15th of April next thereafter unless otherwise specially permitted by the Commissioner of Public Works.” The contract also provided that the contractor should “ maintain the said work in good condition to the satisfaction of the Commissioner of Public Works, his successor or successors, for the period of fifteen years from the final completion and accept anee thereof.” The complaint alleges that the contractor “ fully and substantially performed and carried out” the contract on its part. These allegations are denied by the answer. Upon the trial the plaintiff showed the performance of the original contract work, but ¡presented no evidence showing that the contractor had maintained the work in good condition or had made necessary repairs.

We think the plaintiff failed to establish a cause of action. It was incumbent upon him to show that he had substantially performed all the conditions of the contract upon the performance of which the duty of the city to make the payments depended. The city was not in default in failing to pay the contractor unless the contractor maintained the pavement in good condition and upon notice from the commissioner made the repairs provided for in section 13a. These, we think, were conditions precedent to a right of recovery. There certainly is no presumption that the pavement remained in good condition or that it did not need repairs during this long period of time. It was the duty of the contractor to maintain the pavement in good condition without any notice from the commissioner, and it was his duty also to make the repair’s specified in section 13a upon notice from the commissioner.

This work was done pursuant to the provisions of section 321 of the Consolidation Act, so called (Laws of 1882, chap. 410), as amended by chapter 589 of the Laws of 1887, which provided that the cost should be borne by the general fund. Where the expense of an improvement of this character is not to be borne by local assessment, there can be no doubt of the authority of the city, even in the absence of express authority from the Legislature, to insert such a maintenance clause in the contract. Similar maintenance provisions have been sustained by numerous decisions of sister States. (Barber Asphalt Paving Co. v. Hezel, 76 Mo. App. 135 ; Barber Asphalt Paving Co. v. Watt, 51 La. Ann. 1345; Robertson v. City of Omaha, 55 Neb. 718; Wilson v. City of Trenton, 61 N. J. L. 599 ; Allen v. City of Davenport, 107 Iowa, 90.)

The requirement that the contractor should maintain the work for a reasonable period of time and keep it in repair during that time was eminently proper, in the interest of the taxpayers and should be sustained.

The complaint has not been dismissed upon the merits, and if the plaintiff is able to show substantial performance he is at liberty to again sue upon paying the costs. The judgment should, therefore, be affirmed, with costs.

Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed, with costs.  