
    St. George Contracting Company, Appellant, v. The City of New York, Respondent.
    Second Department,
    March 17, 1911.
    Contract — municipal contract — excavation of material by third person without authority — when contractor cannot recover — substantial performance — burden of proof.
    Where a municipal contract for building retaining walls entitled the contractor to a certain sum per cubic yard for excavation and required him to fill in the excavated material behind the retaining wall when built, it is not entitled to recover for excavating material which was excavated and carried away from the premises by a third person acting without authority from the city or from the contractor. This, because while the contractor might adopt the act of the volunteer, it must adopt the act wholly, and hence failed in its obligation to deposit the excavated material behind the retaining wall.
    Under such circumstances a recovery against the city is not warranted, although the contract provided that, if the excavated material should exceed the amount necessary to fill in behind the retaining wall, the contractor should remove it at its own expense, if it failed to show that the material carried away by the third person was excess material within the meaning of the contract.
    A recovery cannot be had on the theory that no filling was required behind the wall at the particular point where the excavation was made by the third person where the contract called for filling behind the entire retaining wall wherever required.
    Where one claims the benefit of the doctrine of substantial performance of a building contract, the burden is upon him to show the value of the work which he failed to do, so that it can be deducted from the contract price, and hence, under the circumstances aforesaid, the contractor cannot recover as for substantial performance where it has failed to prove the amount of damage to'tlie city in purchasing material to replace that removed by the third person without authority.
    Appeal by the plaintiff, the St. George 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 Kings on the 22d day of July, 1910, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived, dismissing the complaint upon the merits.
    
      Selden Bacon [Saul S. Myers with him on the brief], for the appellant.
    
      Clarence L. Barber [.Theodore Connoly, Alfred W. Booraem and Archibald B. Watson with him on the brief], for the respondent.
   Carr, J.:

On September 10, 1907, the defendant, the City of New York, entered into a written contract with one Engeman for the construction of reinforced concrete retaining walls on Jay and South streets, in the borough of Richmond, in connection with a public improvement known as the St. George Ferry Approach. This contract was based upon printed specifications and on plans and drawings which were intended to be co-operative, and all of which taken together defined the contractual rights and duties of the parties. The contract was awarded to the lowest bidder after advertisement, as provided by statute, and the bids submitted were required to be not in a lump sum for the work as an entirety, but based upon certain units which entered into the completion of the"work. These units were set forth in printed proposals for bids, and their amount stated, but stated to be approximate only, and all bidders were called upon to verify these approximations at their own risk. Among the units so stated approximately was one as follows: “ (3) 23000 cubic yards óf Excavation.” The plaintiff, being the lowest bidder, was awarded the contract above referred to. This contract" bound the city to pay the contractor “for excavation, per cubic yard, the sum of Three and 00/100 Dollars ($3.00).”

The specifications contained a clause as to excavations as follows: “ All excavation will be figured to the toe line in the front and to the heel of the wall ,at the back, in perpendicular lines; the contractor to do all the necessary shoring and to include the cost of same in price bid for excavation. All excavated rocks and boulders shall be carefully placed on the heel of the base of the wall and about drain pipes. All other excavation shall be deposited as filling back of the completed wall in such a way that the slope of the earth shall be away from the wall. This filling shall be puddled if required by the engineer. Should there be excess of excavated materials, the contractor must remove such at his own expense.” The material to be excavated was of three kinds, ordinary top soil or loose dirt, hard pan and rock. The cost of excavating these materials varied quite considerably, and as but one price was to be paid per cubic yard for all excavated material, whatever its character, the approximate amount of each kind of material to be. excavated was necessarily taken into consideration, as a profit on one of the materials might but go to meet a loss on another.

The contract required the contractor to begin work when notified by the president of the borough of Richmond. A notice was given to begin such work on November 1, 1907, and the work was then begun. It happened, however, that the Baltimore and Ohio Railroad. Company owned some lands immediately ad joining the land of the defendant. The railroad company was engaged in carrying out certain improvements of its own which required considerable excavation, for which it used large steam shovels. Between the signing of the contract here in question and the beginning of work under it the railroad company, without the consent of either party to this contract and presumably by mistake, entered upon the land of the city and excavated and carried away some 1,175 cubic yards of the surface material. This matter so excavated is described in the testimony as mainly “hardpan.” It is testified- that the cost to the plaintiff of excavating and disposing of this material as provided in the specifications would have been about fifty cents a cubic yard. When the city came to make payments under its contract, it refused to pay the contractor for the material excavated and taken away by the railroad company. This action is brought by the plaintiff, which as assignee of the contract with Engerman carried out the work of erecting the retaining wall, to recover at the rate of three dollars a yard for the material so excavated and carried away by the railroad company. Its claim is that the act of the railroad company inured to the plaintiff’s advantage by its adoption thereof, and it claims thereby performance of its contractual duty as to this excavation. In other words, it claims that it is to be considered as having done the excavation in question itself, so far as the right to the contractual compensation is concerned. There is nothing in reason or authority which should stand in the way of the plaintiff’s availing itself of the labor of the railroad company as a volunteer, but if it adopts the railroad company’s interference it must adopt it wholly. The railroad company not only excavated the material, but it carried it away. If the plaintiff itself had excavated the material and carried it away, how could it be said to have performed the duty imposed by the specifications of depositing all the excavated material as filling back of the completed wall in such a way that the slope of the earth shall be away from the wall % ” It is true the specification also provides : “ Should there be excess of excavated materials, the contractor must remove such at his own expense,” but where the excavated material has been carried away without depositing it behind the completed wall, the burden on one claiming performance would be to show that the material so carried away was excess material in the meaning of the specifications. There was no proof offered by the . plaintiff to show such a situation. The only proof appearing in the case on this question is to the contrary, namely, that thereafter the city was obliged to buy material for filling behind the completed retaining wall. The plaintiff insists, however, again and again that there was no filling required behind the completed wall at the point of the particular excavation here in controversy. This contention, however, has no determinative effect on the point in controversy, as the specifications called for filling behind the entire retaining wall wherever it should be required for the prescribed slopes.

The plaintiff further insists that the question of performance was not at issue at the trial under the allegations of the complaint and the denials of the answer. It contends that it alleged full performance and the answer of the defendant did not deny the allegation of full performance, but in this contention we think the plaintiff is clearly in error. On the theory upon which the plaintiff came into court, namely, full performance as to the excavated material, it failed to make out its case. It now contends, however, that it has proved substantial performance and should be allowed the contract price for the excavation in controversy, less such damages as the defendant may have suffered by the carrying away of the- excavated material. The case is silent as to the extent and amount of the defendant’s damage, and the plaintiff insists that it should be limited to the nominal amount of six cents. Where one claims the benefit of the doctrine of substantia] performance, the burden is on him to show the value of the work omitted to be done, for, as was said by Vann, J.,in Spence v. Ham (163 N. Y. 220, 226): “He who relies upon substantial as contrasted with complete performance must prove the expense of supplying the omissions, or he fails in his proof, for he cannot recover for full performance when a part of the contract is still unperformed. The doctrine of substantial performance necessarily includes compensation for all defects, which are not so slight and insignificant as to be safely overlooked on the principle of de minimis non cwrat lex? ( Van Clief v. Van Vechten [130 N. Y. 571], supra.) Unsubstantial defects may be cured, but at the expense of the contractor, not of the owner. The contractor cannot recover the entire contract price when defects or omissions appear, for he must show not only that they were unsubstantial and unintentional, but also the amount needed to make them good, so that it can be deducted from the contract price and a recovery had for the balance only. This is an essential part of substantial performance, and hence the proof should be furnished by the one who claims substantial performance.” As before stated, the number of cubic yards of excavated material which forms the subject of this controversy was 1,175 yards. The amount of excavation done under the contract as to which there is no controversy was 21,598 cubic yards. Assuming that all of the 1,175 yards of excavated material which was carried away by the railroad company should have been deposited as filling behind the completed wall, this amount bore such proportionate relation to the whole amount of the excavation that a claim of substantial performance may have been tenable had the plaintiff sustained the burden of proof which such a claim imposed.

This ease is not without apparent equities in favor of the plaintiff, but we are unable to interfere with the judgment of the trial court on the record now before us.

The judgment should be affirmed, with costs.

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment affirmed, with costs.  