
    F. V. Smith Contracting Company, Appellant, v. The City of New York, Respondent. (Action No. 7.)
    First Department,
    April 9, 1915.
    Municipal corporations—cancellation of municipal contract for paving, because of delay by contractor — action of engineer in advising cancellation of contract— opinion based upon reports of subordinates — evidence.
    Action against the city of New York upon a contract for regulating, grading and paving an avenue in the borough of The Bronx. The contract provided that the work was to be completed within a certain number of working days, and that the president of the borough should have the power to notify the contractor to discontinue the work if the “ chief engineer ” of the borough should certify that the performance of the contract was being “unnecessarily or unreasonably delayed.” Pending the performance of the contract the position of “chief engineer” was abolished, and his duties devolved upon an officer designated as “chief engineer of sewers and highways.” The president of the borough declared plaintiff’s contract abandoned on the ground that the work had been “ unnecessarily and unreasonably delayed,” but it appeared that the engineer upon whose certificate he based his opinion had no personal knowledge of the facts, but relied solely upon reports from his subordinates, which the jury might have found to be untrue.
    
      Held, that under such circumstances it was error to direct a verdict for the defendant.
    Appeal by the plaintiff, F. V. Smith Contracting Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of February, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 27th day of March, 1914, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Charles J. Hardy, for the appellant.
    
      Clarence L. Barber, for the respondent.
   Scott, J.:

The action is upon a contract for regulating, grading and paving Leggett avenue, in the borough of The Bronx. The contract was executed on March 22, 1909, and provided that the work should be completed within 800 working days. On May 16, 1910, the president of the borough of The Bronx declared the contract abandoned on the ground that the work had been “unnecessarily and unreasonably delayed,” and thereupon the plaintiffs and its workmen were compelled to leave the job and the work was relet.

The contract contained the usual provisions that if “ the engineer shall be of the opinion and shall so certify in writing to the President that the performance of the contract is unnecessarily or unreasonably delayed, * * * the President shall have the power to notify the contractor to discontinue all work, or any part thereof,” and thereupon to relet the work. The contract provided that the word “ engineer ” wherever used should be deemed to designate the chief engineer of the borough of The Bronx. Pending the performance of the contract the office of the borough president of The Bronx was reorganized; the position of chief engineer of the borough of The Bronx was abolished, and the duties formerly performed by him with reference to the class of work to be performed under plaintiff’s contract were devolved upon an officer designated as the chief engineer of sewers and highways.

The sole ground upon which the borough president declared the contract abandoned was that the work had been “unnecessarily and unreasonably delayed,” and it is the plaintiff’s contention that the method by which the contract could be abrogated for this reason is clearly defined by the contract itself, and that this method was not followed. It further contends, and there is evidence from which the jury might have so found, that there had not been unnecessary or unreasonable delay. The officers of defendant seem to have strangely ignored and overlooked the plain provisions of the contract as to the method to be pursued when occasion arose for abrogating a contract for delay.

In this particular the case is on all fours with Wakefield Const. Co. v. City of New York (157 App. Div. 535), in which this court affirmed a judgment in favor of the plaintiff upon a contract for the construction of a sewer in the borough of The Bronx, in which the same officers acted who acted in the present case, and in the same manner. It was held in that case that while the certificates of the engineer and of the borough president did not in form comply with the requirements of the contracts, they were in substantial compliance therewith. It appeared in that case, however, as it appears in this, that the chief engineer of sewers and highways whose certificate that the work was unnecessarily and unreasonably delayed was an essential prerequisite to a lawful abrogation of the contract by the borough president, and upon whose certificate the president assumed to act, had no personal knowledge of the facts upon which his certificate was based, but relied for such facts entirely upon reports from his subordinates. In the Wakefield Company case the jury found that these reports were untrue and erroneous, and in the present case the jury might have so found if it had been permitted to pass upon the question. Upon this state of facts this court said: “In forming his opinion the engineer necessarily relied to some extent upon the reports of his subordinates. It seems obvious that if those reports were untrue or inadequate, and the engineer, without any investigation himself, relied solely upon them in forming his opinion, then no matter how implicitly he believed in the truth of the reports, his certificate' would not be conclusive because it would not represent his honest judgment based upon existing facts. Therefore, I am of the opinion that the plaintiff was entitled to show what the actual facts were, and if there were no facts upon which the judgment of the chief engineer could have been based, then the jury was justified in concluding that either the facts had been misrepresented to him, or that his opinion was not based on any facts. The chief engineer did not have the right to cancel the contract at his option, but only to certify when, in his opinion, its performance had been unreasonably or unnecessarily delayed. If he formed such an opinion capriciously or arbitrarily, without regard to the facts, then his certificate was not given in good faith.”

If we were right in affirming the judgment in the case from which I have cited, it seems to follow necessarily that the present judgment cannot be sustained for the two cases are not to be distinguished upon the facts. In the present case there was evidence from which the jury might have found that at the date of the abrogation of the contract plaintiff’s delay was considerably less than the engineer of sewers and highways believed that it was, and on an appeal from a directed verdict for the defendant plaintiff is entitled to the benefit of the most favorable inferences to be drawn from the testimony.

It is quite probable that plaintiff’s damages will, upon a retrial, be found to be much smaller than it claims, and it may even be found that it has suffered no appreciable damage, but all that is a matter for the jury. Upon the authority, therefore, of Wakefield Const. Co. v. City of New York (supra), the judgment appealed from must be reversed and anew trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  