
    John Phelan, App’lt, v. The Mayor, etc., of New York, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    Municipal cobfobation—Conteact.
    Plaintiff having performed work for defendant under a contract, brought an action to recover a sum retained by the city for inspectors' fees for 375 days beyond the 330 allowed by the contract, and based it on the ground that the performance was prevented by the neglect of the city to remove obstructions from the street, and the referee refused to submit the question to the jury. Held, no error, as by the terms of the contract it was a condition precedent to any right of the plaintiff to be relieved from allowance of inspectors’ fees that the matter should have been submitted to and be determined by the commissioner of public works, and this was not done, nor was it shown that he had refused to act.
    Appeal from the New York superior court, general term, overruling exceptions heard in the first instance and ordering judgment for defendant on verdict.
    The complaint in this action contained two causes of action, one for $1,125 balance of contract price for grading One Hundred and Twelfth street, and another for $5,000 damages for delaying plaintiff and his assignor in the performance of the contract for the grading.
    The defendant, in its answer, denied that the delay for which damages are claimed was caused by it, and claimed that; it had a right to retain the $1,125 by reason of a clause in the contract that in the computation of the time fixed for performance “the total time * * * during which the work of completing the -contract is delayed in consequence of any act or omission of the parties of the first part (all of which shall be determined by said commissioner of public works, who shall certify to the same in writing) * * * shall be excluded.”
    
      James A. Deering, for app’lt; D. J. Dean, for resp’t.
    
      
       Affirming 33 N. Y. State Rep., 418.
    
   Andrews, J.

The release was a good answer to the second cause of action alleged in the complaint, founded on the delay on the part of the city to remove the obstructions in the street, thereby-preventing the plaintiff from proceeding with the performance of the contract Seymour v. Minturn, 17 Johns., 170; Gray v. Barton, 55 N. Y., 68; Coulter v. Board of Education, 63 id., 366; Simson v. Brown, 68 id., 355.

The claim to recover the sum retained by the city for inspectors’ fees for the 375 days beyond the 320 days allowed by the contract for the completion of the work is based on the ground that performance was prevented by the neglect of the city to remove the obstructions from the street. The plaintiff requested the court to submit the question to the jury, which request was refused, and the plaintiff excepted. There was no error in this ruling. The contract provides that in computing the time exceeding the 320 days, “ during which the work of completing the contract is delayed in consequence of any act or omission of the party of the first part (all of which, shall he determined by the commissioner of public works, who shall certify the same in writing), and also Sundays and holidays on which no work is done, and days on which the prosecution of the work is suspended by the said commissioner, shall be excluded.” There was no determination of the commissioner of public works applied for or made under this provision. The inspectors’ fees were a proper charge under another provision of the contract, unless, according to the provision quoted, the delay was occasioned by the act or omission of the city. But by the terms of this clause it was a condition precedent to any right of the plaintiff to be relieved from the allowance of inspectors’ fees, that the matter should have been submitted to, and be determined by the commissioner of public works, and this was not done. It was a lawful and binding provision and is an answer to the claim in the first count of the complaint.

If the commissioner had neglected or refused to act when called upon to do so, a different question would be presented. Smith v. Brady, 17 N. Y., 176.; Bowery Nat. Bank v. Mayor, etc., 63 id., 337; Nolan v. Whitney, 88 id., 648.

The point that it was not proved that the inspector, Fitzgerald, who was paid for 304 days’ inspection, had ever performed the work of inspection, is not presented by the case, as the deposition of Fitzgerald, which was read on the trial, is not printed, and this evidence may have supplied the proof which is now absent.

We find no error in the judgment, and it should, therefore, be affirmed.

All concur.  