
    Michael J. Dady, Respt, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed July 18, 1890.)
    
    1. Municipal corporations — Contract—Delays in work.
    A contract with the city provided for completion of the work in 300 days, and allowed the city to retain a certain sum per day for delay beyond that time. It also provided that in computing such 300 days, Sundays, holidays, and days when work is suspended by the commissioners, and time when delays are caused by the act or omission of the city should be deducted, “all of which shall be determined by the commissioner of public works, who shall certify to the same in writing.” Feld, that this provision was intended to enable the city to appeal to the commissioner in case the contractors claimed too large a deduction, and did not make the obtaining of a certificate a condition precedent to the maintenance of a. suit to recover moneys earned under the contract.
    2. Same.
    The contractor will not be presumed to have assumed the risk of any delay he might suffer through the operation of the statute giving sewerage-work a preference over other street improvements.
    3. Same.
    Where the city causes any substantial delay in the work, it loses the right to charge the contractors with the stipulated liquidated damages for overtime, and can only insist that the time of completion shall be reasonable.
    Appeal from judgment entered on a verdict at circuit and from order denying defendant’s motion for a new trial.
    
      John J. Townsend, for appl’t; L. Lafiin Kellogg, for resp’t
   Bartlett, J.

The plaintiff brings this action as the representative of the firm of John Cox & Co., to recover a balance of $2,841, claimed to be due from the city upon a contract for regulating and grading 108th street from 8th avenue to Manhattan avenue and setting curbstones and flagging sidewalks therein. The 'defendants admit the execution of the contract but claim the right to retain out of the sum which the contractors would otherwise be entitled to receive $2,740, as liquidated damages for delay in completing the work, and $101 as repair security. The contract provided for the completion of the work in 300 days, and authorized the city to deduct and retain out of the moneys payable thereunder the sum of $20 a day as liquidated damages for delay beyond the prescribed period. The defendants insist that the contractors are chargeable with 137 days overtime under this provision in the contract, to which the plaintiff responds that the city itself prevented him from doing the work in 300 days and hence should not be allowed to hold back any portion of the payment. Ilis proposition that the delay was attributable to the action of the city authorities in carrying on other public works in the neighborhood, which prevented him from fulfilling his contract so far as the element of time is concerned, has been sustained by the finding of the jury.

The contract provides that, in computing the 300 days, Sundays shall be excluded, and holidays on which no work is done, and days when work is suspended by order of the commissioners, and ■“the time, aggregated in days and parts of days, during which the work required by this contract has been delayed by any act or omission of the parties of the first part (the defendants), all of which shall be determined by the said commissioner of public works, who shall certify to the same in writing.”

The first point made in behalf of the appellants is that the plaintiff was bound to produce the certificate mentioned in this clause, or prove that he had applied for it and that his request had been unreasonably refused. But the contract does not make the obtaining of this certificate a condition precedent to the maintenance of a suit to recover moneys earned thereunder. The provision seems designed to enable the defendants, if so disposed, to appeal to the commissioner of public works to decide how much time should be excluded from the 300 days by reason of the city’s interference with the due prosecution of the work by the contractors, so that if the contractors claimed too large a deduction on that account, this officer should act as an arbiter between the parties previously chosen or consented to by both. Unless the city called him in to compute the delay, however, the contractors were certainly not bound to do so.

Section 328 of the Mew York city consolidation act prescribes that the construction of work under plans for sewerage shall have precedence over and shall not be interfered with by any work connected with other street improvements. The plaintiff attributed much of the delay to the building of a sewer in Eighth avenue. The second point made in behalf of the city on the present appeal is that the plaintiff must be deemed to have had knowledge of this law, and in undertaking to complete his work in 300 days the contractor assumed the risk of any delay he might suffer through the operation of the statute giving sewerage works a preference over other street improvements. In other words, the position of the appellants appears to be that the city can avail itself of this statute to interfere with a street contractor’s work and then charge him twenty dollars a day for the delay which it thus occasions. Further discussion of this suggestion seems unnecessary.

Finally it is contended that the trial court erred in declining to instruct the jury that they might apportion the overtime between •the contractors and the city, so that the plaintiff should recover •only for the exact number of days that the work was delayed by the action of the city authorities.

The learned judge was of the opinion that there was no evidence in the case precise enough to make such an apportionment anything but mere guesswork, and charged the jury that if the city by its action so delayed the contractors as to prevent them from finishing the work within the contract time, the plaintiff was entitled to a verdict for the full amount; but that if it had caused no such delay, the city was entitled to a verdict. I think this instruction was correct. When the city caused any substantial delay in the work, it lost the right to charge the contractors with the stipulated liquidated damages for overtime, and could only insist that the time of completion should be reasonable.

In my opinion, the judgment and order appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concur.  