
    John Canavan et al., Respondents, v. Thomas Dwyer, Impleaded, Appellant.
    (New York Common Pleas
    General Term,
    November, 1895.)
    A refusal to remove a boiler which is in the line of the excavation and a declaration that he would be held liable for any damage thereto resulting from the work is sufficient to justify the contractor in discontinuing work under the contract.
    Where a contract for excavation requires the contractor to quarry and split up in a specified "manner a certain quantity of rock excavated, but does not specify the intervals at which it is to be furnished, and the other party to the contract retains á portion of the sums due thereunder for the purpose of dressing the stone iñ the manner required, the mere fact that only a small portion of such amount had been furnished by the contractor at the time he discontinued work is not sufficient to show failure of performance on his part.
    Where a contract expressly calls for embankment work, the contractor is not relieved from performance thereof, or entitled to extra compensation therefor, by the fact that the words “ and if necessary shall be first piled and afterwards spread over the embankment ” - were stricken out of a clause relating to the disposition to be made of earth and soil when excavated. ■
    Appeal from a judgment rendered by the court without a j™7-
    Action by subcontractors to foreclose a mechanic’s lien upon funds in the hands of the comptroller of the city of New York, due to defendant by virtue of a contract entered into between the latter and the corporation. Laws 1875, chap. 315 and .amending acts; Consolidation Act, §§ .1824, 1838.
    
      ■■ Henri/ Daily, Jr., for appellant.
    
      L. Lajli/n Kellogg, for respondents.
   Bischoff, J.

'The plaintiffs’ right to recovery and the availability of the defendant’s counterclaims had respective dependence upon the question whether the plaintiffs’ discontinuance of work under their contract with the defendant was rightful or wrongful, and upon the evidence we have but to concur in the. views expressed by the learned trial judge that the defendant’s acts of prevention justified the plaintiffs’ failure to complete the work assumed.

It was Dwyer’s refusal to remove a certain boiler, directly in the line of the excavation undertaken by the plaintiffs, and as laid out by the engineers, which removal was essential -to the continuance of the work, together with his declaration that he would hold the plaintiffs to any damage resulting to the boiler from their operations, which caused the latter to stop their work, and the record shows that the position taken by them' was thoroughly justifiable.

• Upon the question of the amount of work performed by the plaintiffs, and for which the facts proved they were entitled to recover at the contract price (Thorp v. Ross, 4 Keyes, 546; Flaherty v. Miner, 123 N. Y. 389), there is practically no dispute; but our attention is to be directed to a question involving the merits of a counterclaim by the defendant and which is also brought up upon the issue of the plaintiffs’ proper performance.

This deals with the following clause of the contract between the parties : “ Fwst, the rock excavated shall be quarried by the said parties of the second part (these plaintiffs) in such a manner that all bottom stone found on the premises can be used as bottom stone, and about one thousand three hundred cubic yards of rock excavated, or such other quantity as the party of the first part may require for broken ashler masonry on said job, shall be quarried or split up by the said parties of the second part in such a manner as to give two level beds, and one face to each stone at such an angle to the bottom bed of' said stone as the upright position of the wall may require,- and the two ends shall be at right angles to the face,” etc.

.As has been said, there is no question as to the actual excavation of rock made by the plaintiffs, and fundamentally the contract called for but two kinds of work, excavation of rock and of earth; but it is contended that the plaintiffs did not quarry and split the stone for “ broken ashler masonry ” in •exact accordance with the above terms.

•It is to be noted first that the contract did not call for the quarrying of all the stone excavated in- such a manner as to be available for “ broken ashler masonry; ” the plaintiffs in the execution of their contract were to furnish a certain amount of stone so quarried, but the agreement fails to specify at what intervals it should be supplied.

There is no question that “ broken ashler masonry ” stone was furnished, and, according to 'some of the testimony, in compliance with the strict terms of the contract; further,, the defendant retained a sum of money from payments due the plaiptiffs for the purpose of dressing certain of. the stone so as to form it as required.

The rock excavated was found, in places, to be of a nature little adapted for quarrying and splitting as called for, but it is in evidence that the plaintiffs quarried it in the manner required as nearly as possible. Moreover, performance of the contract having been prevented, it cannot be said that the full amount of stone for broken ashler masonry ” called for would not have been furnished by the plaintiffs at the time of its completion, had they been unobstructed.

Such being the case, it is not to be held that the plaintiffs failed in performance of their work, and the above facts also bear against the counterclaim for sums expended in dressing and facing the stone, apart from the fact, as pointed out by the learned trial judge, that the proof as to the amount so expended was insufficient to form the basis of a recovery by the defendant.

Certain lesser items of the plaintiffs’ recovery are found to have been properly allowed; in fact, no point is raised but with regard to the claim for damages occasioned by the defendant’s delay of the plaintiffs’ work, and the record amply supports the finding below in this instance.

We are impelled, however, to the view that the allowance to the plaintiffs of $3,280 for extra work done upon “ embankment” was unauthorized, since it clearly appears that this work was assumed by the terms of their contract. This contract provided (paragraph 6): “The parties of the second part shall well and duly observe and follow all provisions of the said contract made by the party of the first part and the said city, and the specifications thereof, so far as the same affect or relate to work herein agreed by them to be performed or any part thereof, and they especially agree to do and perform all such work or service as the party of the first pan't may be required to do under the headings rock excavation^ earth excavation cmd embankment, in said specifications, not herein otherwise providedfor.” It is to be noticed that the clause “ not herein otherwise provided for ” had reference to the observance of the city’s specifications touching each of the three headings “earth,” “rock” and “embankment,” and the plaintiffs’ contract, in another paragraph, contained a materially different provision 'from that specified by the city with regard to the rock excavation, to wit, the preparation of ■stone for “ broken ashler masonry.” Hence, in order that a meaning may be given to the excepting clause, resort need not he had to a strained construction of any provision of the contract touching the “ embankment ” . work, and a reasonable interpretation of the clause next to be noticed, and upon which the recovery appears to have been based, militates against the respondents’ claim. The second paragraph of the plaintiffs’ ■contract, as originally drafted by Dwyer, read: “ All earth or soil found in the earth excavation shall be removed and deposited by the parties of the second part, as directed by the party of the first part, cmd if necessary shall be first piled cmd afterwards spread over the embankment.” Before execution of the instrument the words “ and if necessary shall be first piled and afterwards spread over the embankment ” were stricken out at the plaintiffs’ instance, and. this appears to have been taken by the trial court negatively as some expression of an intention that the “ embankment ” work was not to be assumed. In the. first plane we observe that the words stricken out recognized the existence of' “ embankment ” upon which the earth should be spread; hence, it cannot be inferred that the words themselves called for the construction of embankment; that is, that they merely expressed in another form the requirements of paragraph “ sixth ” above quoted. Thus the act of striking them out did not evidence an intention to dispense with the 'specific obligation assumed to do such work. Further, it appears that the “.piling” of earth formed no part of the work upon “ embankment ’f according to the city’s specifications, nor did such specifications call for “spreading” after the labor in its numerous details, as required in the making of “ embankment,” had been performed. The only effect to be reasonably- given to the act of striking out the words noted appears to be that- the plaintiffs did not agree to assume any further burdens under the contract,. but certainly no intention to annul the expressed provisions of the agreement" calling for “ embankment ” work can be gathered. It may be that the plaintiffs entered into a losing venture, but their contract is unambiguous in its terms, ,and. as framed defines the rights of the parties in this case.

The only exception taken upon the- trial which might call for any discussion raised the point as to the admissibility of the testimony showing that the words referred to in paragraph 2 were actually contained in the proposed contract and afterwards stricken out, but our conclusion upon the question, of extra work renders consideration of the ruling unnecessary.

" The judgment must be reversed and a new trial ordered, with costs to the .appellant to abide the event, unless the plaintiffs stipulate to reduce the amount of the judgment by the sum of ^3,280, in which event the judgment is affirmed, with costs.

. Pryob, J., concurs.

Judgment reversed unless reduced upon stipulation, and as réduced affirmed, with costs. ‘ ■  