
    VIRGILIO DEL GENOVESE, Appellant and Respondent v. THE MAYOR &c. of THE CITY OF NEW YORK, Respondents and Appellants.
    
      Agent, authority in, when not implied—Estoppel; principal, when not estopped from denying agent's authority—Improper nomenclature, not being injurious, is not cause for reversal.
    
    Where a contract for the doing of work contains an express provision requiring a certain thing to be done, as specifically provided for, no implication can arise than an agent, appointed by the party, for whom the work is to be done, to represent him as to certain other things in respect of the work, is authorized to vary the contract as to the specific provisions thereof.
    Where in such case the principal has made no representation in words or acts that the agent was authorized to give directions directing the work so specifically provided for, to be done, otherwise than as provided for, the principal is not estopped from denying the agent’s authority by reason of the party who claims the estoppel having acted under views which he chose to take as to the agent’s authority.
    The principal in such case, is not estopped from denying authority where he receives no benefit from the doing the unauthorized acts, and is in order to take the work as contracted to be done, forced to accept it in its condition at the time of acceptance.
    Where there are three estimates, each of which has testimony to support it, and the court in answer to a question by the jury as to whether they must bring in a verdict for one of the three amounts, or could compromise the amounts, instructed them: “ You must bring in a verdict for one of those amounts.” Held, not error.
    Improper nomenclature by the trial judge, such as calling the certificate o£ an officer of a municipal corporation an ‘‘ admission ” by the corporation, when not injurious, as where the evidence shows that the certificate of the officer was made on a certificate of an agent employed by him who testified that he made the data from which his statement was made, and that he believed his statement to have been correct, is not cause for a reversal.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided April 2, 1888.
    
      Appeals from judgment in favor of plaintiff, entered upon the verdict of a jury.
    The facts sufficiently appear in the opinion.
    
      Morgan J. O'Brien, counsel to the corporation, and Francis M. Scott and Woolsey Carnalt of counsel for defendant, on the questions considered in the opinion, argued:
    I. The court erred in the charge to the jury. It was error to characterize the.certificate of the commissioner of public works attached to the assessment roll as an “admission” on the part of the city. This certificate is not made evidence by the contract. The only contest was as to the amount of work done. -There was no question as to the completion of the work. The contract provides that the return of the surveyor—not of the commissioner of public works—shall be, prima facie, the evidence of the amount of work done. The only certificate to be given by the commissioner of public works is that the work has been completed to his satisfaction, and has been accepted by him. The commissioner of public works was called and testified that he knew nothing personally, when he signed the certificate of the accuracy of the measurements, but-that he signed it, as of necessity he must, upon the faith of the prior certificates of Mr. Dean and Mr. Birdsall, and this clearly appears upon the face of the certificate itself. The jury had already been told in detail by Mr. Loomis exactly how the figures contained in the assessment certificate had been arrived at, and lastly, the certificate attached to the assessment roll had nothing to do with the plaintiff or his claim. It is as clear as anything could be, that this certificate was not evidence of anything set forth in it—it was not provided for in the contract—it was not made from an actual survey. And yet the court in charging the jury repeatedly referred to it as an “admission” on the part of the city. “The estimates which are admissions on the part of the city” .....“The admissions contained in the certificates signed by the defendants themselves ”.....“ The other estimate which was shown by the admission of the plaintiff [Queere, defendant) to which General Newton had signed his name.” Surely it cannot be claimed that these repeated characterizations of this certificate as an “ admission ” did not operate to the. disadvantage of the defendant—in truth it would have been next to impossible for the jury, after having this “ admission” so constantly impressed upon their notice, to have found a verdict for the defendant. It was error also to charge that Yiele’s final certificate “ was made, or is supposed to have been made from an examination made by the surveyor while the work was in actual progress.” There is absolutely ño evidence in the case to warrant such a charge. It was not even attempted to be shown how Yiele arrived at the figures. He himself was not called as a witness, and if he had been it is doubtful if he could have told what peculiar process he followed—it is at least certain that he was not given an opportunity. Yiele’s is evidence only by virtue of the terms of the contract, and is by it made only prima facie evidence, controlling in the absence of evidence to the contrary. When original evidence had been introduced by the defendant contradicting the certificate, the burden of proof shifted, and it became incumbent upon the plaintiff to prove the true quantities of earth and rock excavation by competent evidence.
    II. The court erred in its answer to the question propounded by the jury. The question sent in was: “Must we bring in a verdict for one of the three amounts, Yiele’s, Quien’s or the Newton statement, orean we compromise the amounts ? ” To which the court sent the following reply: “ You must bring in a verdict for one of those amounts.” This was error if there was any possibility that the truth lay between the three estimates mentioned. The three statements referred to by the jury were : 1st. Viele’s contained in the final certificate, arrived at no one knows how; 2d. General Newton’s certificate attached to the assessment roll (which the court insisted upon calling an “admission”) made up from Loomis’ estimate of the relative quantities of earth and rock made after the work had been completed; 3d. Quien’s estimate made from an actual survey after the earth had been stripped from the rock, and before any rock had been excavated, considering all therefore excavated as earth, and all yet to be excavated as rock. But there had been besides these estimates a doubt engendered by the evidence as to whether or not Quien had included in his figure for rock excavation a piece of rock near Riverside avenue estimated to contain about 333 cubic yards. Now it may be that the plaintiff was right about this one piece of rock, and that it should have been added to Quien’s estimate. If so, the truth would have lain midway between Quien’s figures and those contained in the Newton certificate. If this were so the court’s answer to jury’s question would have, and did prevent the rendition of a “true verdict,” or the jury might have been of the opinion that while either Viele’s or Loomis’ estimates of the total excavation was correct, yet Quien’s survey of the rock constitutes the best basis for computing the relative quantities of the earth and rock.
    HI. The complaint was properly dismissed as to the second cause of action. No obligation rests upon the city under the contract to furnish “ grade stakes ” to the contractor. The contract refers the contractor to the profile on file in the street commissioner’s office, identifying it by the date of its filing. On this profile are shown the outline of the street surface before the work commenced and its outline when graded. It was the contractor’s business to obtain the grade line from this profile, and procure it to be defined upon the work by an engineer of his own choosing. Or, in the present case, he might have done this for himself, for he testifies that he is an engineer by profession and competent to determine for himself from the profile just whe're to excavate to. When he had completed the work as required by the profile it would be the duty of the , city surveyor, appointed by the commissioner of public works, to certify to such completion, and iii case of a refusal on the part of the surveyor to give such certificate, the contractor would be entitled to recover without such certificate, if, in point of fact, the work was done in accordance with the profile. Bowery Nat. Bank v. Mayor &c., 63 N. Y. 337; Baucker v. Mayor, 8 Hun 409. The only duties or powers imposed or conferred upon the city surveyor by the terms of the contract are to make the monthly seventy per cent, certificates, and to certify the total quantity of work done after the completion of the contract, and to receive $>10 from the contractor for each certificate so made. Nowhere in the contract is there any undertaking or agreement on the part of the commissioner of public works that the grades shall be furnished to the contractor, except by referring him to the profile. Bonesteel v. The. Mayor &c., 22 N. Y. 162; Brady v. Mayor etc., 20 Ib. 312; Riley v. Brooklyn, 46 Ib. 444; The agreement as to surveying is simply that when the work is done the commissioner of public works will send a surveyor to examine it, and if it has been properly done, so to certify, but even his certificate is not conclusive upon the city, for its accuracy may be disputed. Doubtless, as a matter of precaution, the contractors prefer to obtain their grades from the surveyor, who in the end will be called upon to certify to the accuracy of the work, but this is a mere voluntary act. They are not required by their contract so to do, and the city surveyor (who is not a city official) is not authorized by the contract, or by any act or ordinance to give grades as the work progresses. If he chooses to do so, and the contractor chooses to rely upon him, that is a matter between them, and if a mistake is made by the surveyor the contractor can have no claim against the city, for in giving the grades the surveyor did not, and could not under the terms of his employment, represent or bind the city in any way. It will be observed that under a contract like the present the city surveyor has very restricted powers, and in so far as he is the agent of the city his agency is of a very limited and special character. He had no general authority to represent or bind the city. His authority extends only to examining and measuring the work as it progressed and when it is completed, and making certificates of the results of such measurements. And the plaintiff knew just what the surveyor’s powers and duties were, for it was all written down in his contract. The city was under no obligation to send a surveyor to give grades to the contractor, and did not undertake to do so. Clearly, therefore, it cannot be held liable for errors made by a surveyor selected by the •contractor himself, even though it happened that the surveyor so employed was the same one that the city had employed to make measurements of the work done and materials used. But in the present case the plaintiff sought to recover nob even for mistakes on the part of the city surveyor, but for mistakes made by two other persons, strangers to the contract and to the city (Mr. Klinkerfues and Mr. Quien). We have undertaken to demonstrate that the city is not liable for the mistakes of the city surveyor himself in giving grades to the contractor ; how much less reason is there for holding it to liability for the mistakes of two entire strangers. We have pointed out how special and limited was the agency intrusted to the surveyor by the city—can it be contended for an instant that the powers conferred upon such an agent can be delegated by him to a stranger without the knowledge or consent of his principal ? Mr. Yiele’s expressed duty under this contract was to measure the work and to execute certain certificates upon which payments to the contractor were made. Would the commissioner of public works have received and acted upon certificates signed by Klinkerfues ? Certainly not. Is there any better reason why Klinkerfues should be permitted to conclude and prejudice the city by performing duties or executing powers claimed to have been, not expressly, but only impliedly conferred on Yiele ? Our contention is that Yiele was not authorized or empowered to give, as the representative of the city, any grades or grade stakes to the contractor, and that if he assumed to do so he did so as the employee and agent of the contractor and not of the city; and that what Yiele himself could not do he clearly could not delegate to others. The truth is, the contractor has suffered loss by relying upon a careless or incompetent surveyor, and if it be said that the city also employed him, the answer is ready. It is that the judgment recovered under the first cause of action in this case is the price the city will have to pay (if the judgment stands) for its reliance upon the same inefficient surveyor.
    
      S. A. Walker, attorney, and L. Laflin Kellogg of counsel for plaintiff, on the questions considered in the opinion, argued:
    I. The court erred in dismissing the plaintiff’s second cause of action, except as to the sum of $279, and in refusing either to direct a verdict upon that cause of action for the plaintiff or -charging the jury as requested in that behalf by the plaintiff. The city, while conceding that this extra work was done and occasioned by the act of their engineer, raised three objections to the allowance of this claim. 1. That the city were not obliged to give any grade stakes. 2. That grade stakes were not given by any one authorized to give grade stakes because given by the assistants or agents of Mr. Yiele, the surveyor, and not by Mr. Yiele himself. 3. The claim that the city is not responsible for any of the damage thus occasioned. The city was responsible .for any damage caused by erroneous grades given by its officers, and the plaintiff was entitled to recover thereunder. The plaintiff claims and the proof shows: 1. That the city surveyor is the agent of the defendant, acts under the direction of the commissioner of public works, who is obliged by ordinance to appoint him, and has, under the direction of the commissioner of public works to whose satisfaction the work is to be finished, a supervisory control over the work under the entire contract. 2. That the commissioner of public works, through his superintendent of street improvements, having assumed the duty of giving grade stakes, and having compelled the contractor to do the work according to those grade stakes, has made the defendant responsible for damages resulting from that act. 3. That the plaintiff is entitled to recover the actual damage caused by the defendant or its authorized agents, without reference to the prices named in the contract, (a) The agency of the surveyor is conclusively proved. The contract provides: The work is under the charge of the commissioner of public works. It must be done to his satisfaction, and only in substantial accordance with the said specification. The work is let pursuant to ordinance which required it to be done under the direction of the commissioner of public works, and directed him to appoint one of the city surveyors to supervise the same. The commissioner of public works appoints Herman K. Yiele. Under the contract, the legitimacy of which-is not disputed, the work is to be examined by the surveyor before placing any filling thereon, after which earth filling is to be filled to grade. The allowance for boulders will be de- . termined by the engineer. The slopes are to be regulated as directed by the engineer. The return of the city surveyor shall be the account by which the amount of materials furnished and work done shall be computed. It is further expressly understood and agreed by and between the parties hereto, that the action of the engineer or surveyor by which the said contractor is to be bound and concluded according to the terms of this contract shall be that evidenced by his final certificate. He is referred to in the contract as an officer or agent of the defendant. “ Nor shall any department or officer of the city of New York be precluded or estopped by any return or certificate made or given by any engineer, surveyor, inspector or other officer, agent or appointee of said department of public works.” It thus appears distinctly that the city surveyor is the agent of the city and the one fully charged by the commissioner of public works with the supervision of this work. (6) It is true, as stated by the defendants, that there is no actual covenant in words and in terms that the surveyor in charge of the work shall give grade stakes or stake lines. The court hereon will take judicial notice that it has been a custom for years in the city of New York for the surveyor to give such grade stakes and grade lines, and that it would be impossible to conduct and carry on a contract of this nature without doing so. The whole spirit of the contract infers that the work shall be done under the direction of the engineer who is allowed more or less discretion in the premises, and it would be impossible for him to carry on the work without grade lines. The commissioner of public works having charge of the contract by law and by terms through the superintendent of street improvements to whom he confided the direct charge of the work as shown by the contract, actually in this case directed the surveyor to give the contractor grade stakes; “ we notified him after the contract was signed, like every other surveyor that Mr. del Genovese was notified to commence work and to give him bhe necessary grade stakes.” In accordance with that instruction Mr. Yiele sent his assistants to the contractor on the line of the work and directed them to give him grade stakes, (c.) These men acting for Yiele came to the work and gave the wrong grade stakes, which caused the damage. Applying the principles of law to these facts we find: 1. The fact that the commissioner of public works ordered grade stakes to be given obviates any necessity for their requirement by the contract. The city assumed the duty of giving these grade stakes. It is therefore estopped by its act from claiming that it was error so to give them. This precise question was so decided in a similar case, by Chief Justice Van Brunt,' at a trial term, and affirmed by the general term of the supreme court, in Mulholland v. Mayor, 44 Hun 630. The opinion is not reported, but the court there held distinctly with the plaintiff on this point that the act of the city estopped them from denying that they were not required to give the grade stakes. In that case the city had already paid the contractor for the extra amount of work done and occasioned by the erroneous grades at contract prices. Is was held, however, that by reason of certain clauses existing in the contract in that case, which do not exist in this, that the plaintiff was not entitled to recover the extra cost as claimed here. 2. The fact that the wrong grade stakes were' given by the assistant of the engineer cannot avail the defendant. The surveyor in this case is in no sense that class of agent which cannot delegate his authority, or who is obliged to do all the work personally himself. It might with equal force be claimed that he should do all the measuring personally himself when it would be impossible to do so without the aid of a rod man. It might with equal force be claimed that the commissioner of public works and other officers named in the contract should personally do all the work themselves, should not be allowed to appoint others to aid them. The agency of Viele being first established and the power and authority of these assistants to give the grades being conceded to be true, make their act as much his act and that of the city as if he had done the act personally. It is well settled that the plaintiff is entitled to recover damage for any additional expense incurred in consequence of being obliged to do the work under disadvantageous circumstances occasioned by the opposite party. Dubois v. Delaware & Hudson Canal Co., 4 Wend. 285; Ladue v. Seymour, 24 Ib. 60; Sedgwick on Damages, page 243 (star paging 222); Alloman v. Mayor of Albany, 43 
      Barb. 33; Cross v. Beards, 26 N. Y. 88; Starbird v. Barrons, 38 Ib. 330; Robinson v. City of Brooklyn, First Dept., March 1876 ; Ring v. Mayor, Lawrence, J.; Slattery v. Mayor, Van Vorst, J.; White v. Mayor, Donohue, J.; Fellows v. Mayor, Larremoke, J.
    II. There was no error in the directions of the court to the jury. The court could not correctly give any other instructions.
   By the Court.—Sedgwick, Ch. J.

The plaintiff argues that there was error in the decision of the court that the plaintiff was not entitled to recover upon his second cause of action claimed, excepting to a certain amount, as to which there is no controversy.

The second cause of action was claimed upon the following facts: The plaintiff had contracted with the defendants to make a public improvement in grading, etc., a street. The contract was in the usual form. The defendants had appointed a city surveyor to represent them in doing certain things in respect of the work. He, or others at his command, fixed certain grade stakes which indicated the depth to which excavations should go. He intended that the grade stakes should guide the plaintiff. Accordingly, the plaintiff excavated to the indicated depth. In fact this was below the grade as shown on profile maps, to which the contract specifically referred. The excavation being deeper than was called for by the contract, filling in was made necessary. The plaintiff claiméd that he should recover the value of the work done by him beyond the work of the contract, but under the indications of the grade stakes. This claim is placed upon two grounds.

The first is, that it was the intention of the contract, that the city surveyor should direct the plaintiff, as to the depth of the excavations. It is admitted that there is no express provision of the contract to such effect. There can be no implication of it, because it was an essential part of the contract that the plaintiff should excavate to a certain depth, for the compensation, according to the amount of work as agreed upon. An implication cannot be understood that any third party, city official or not, should have the authority to vary the contract.

The second ground is, that the city is estopped from maintaining that the city surveyor was without authority to fix the depth of the excavation. In circumstances like these no estoppel could exist, unless the defendants led the plaintiff to believe that the city surveyor was an agent of the city to indicate the way in which the contract should be performed. There was no proof that the plaintiff acted upon the indication, excepting under views that he chose to take as to the authority of the city surveyor, with no representation, in words or act, of any corporate kind, or indeed official, that the surveyor was an agent of the city in regard to the matter. The surveyor could not make himself an agent, by his own act or words, and no other official could make the surveyor such an agent. The estoppel cannot be placed upon the fact that the city received any benefit from the increased work which it accepted. There was no such benefit, and the city, in order to take the work as contracted to be done, was forced to accept the work in its condition, at the time of acceptance.

I find no equity in a general sense, in the plaintiff’s position. The plaintiff had contracted to excavate, etc., according to profiles. He was a civil engineer, and could ascertain the depth of excavation from the profiles. He was not in any sense required to follow any direction of the city surveyor that varied the contract, and indeed, the testimony shows that those employed by the city surveyor were willing to correct the mistake, when attention was given to it.

I am of opinion that in the- plaintiff’s appeal the judgment should be affirmed with costs.

In the defendants’ appeal, I am of opinion that, in view of the terms of the contract and the character of the issue, as to how much work in all had been done, the monthly certificates given to the contractor were admitted in evidence correctly.

The jury asked the court, Must we bring in a verdict for one of the three amounts, Viele’s, Quien’s, or the Newton statement, or can we compromise the amounts ? ” The court answered, “ You must bring in a verdict for one of those amounts.” The counsel for defendants excepted to this. The learned counsel for defendants argues, that as the testimony was of a kind that did not compel a conclusion that one of the three statements must have been exactly correct, if the plaintiff was entitled to recover, the answer of the court was erroneous. I think the question presented as possible courses which the jury might follow, the alternative of finding an absolute verdict for the amount of one of the three statements, or of compromising the amounts. The jury had no right to compromise the matters. In such case there would be supposed to be an adjustment of differences, between the jurors, while the respective parties in the jury would still be of opinion that their position was in accordance with law and fact. The other alternative was to be preferred of finding for the amount of one of the statements. Each of these had testimony to support it which the jury should weigh. Nothing was said by the court, to lead the jury to find for one of the three, unless the evidence convinced it that such finding was in accordance with the testimony. The exception as to this should not be sustained.

A certificate of the commissioner of public works was given in evidence that contained, with other things, a a statement of the amount of work done upon the improvement. The judge in his charge, called this certificate an admission of the defendants as to the amount. An exception was taken to this on the ground that the commissioner had no power to bind the city in this respect. This may be correct. Nevertheless the plaintiff was not injured, for the statement of the certificate was made upon the certificate of engineer Loomis. Loomis was called as a witness and testified that he made total measurements finally, and classifications from an earlier estimate. He believed his statement to have been correct and knew nothing to the contrary. Taking these facts info consideration it was not injurious to say that the statement of the commissioner was an admission.

In the defendants’ appeal the judgment should be affirmed with costs.

Freedman, J., concurred; Ingraham, J., not voting.  