
    In the Matter of the Application of the Morris & Cumings Dredging Company, Appellant, for a Peremptory Writ of Mandamus. The City of New York, Respondent.
    Firs't Department,
    December 7, 1906.
    Municipal corporations — dredging contract in city of New York — amount of work limited by estimate — practice — when mandamus does not lie.
    Under a municipal contract by the city of New York for dredging *" about 50,000 cubic yards” of earth as directed by the engineer in charge, with extra work not to exceed five per cent of the total cost, the work done must he limited to that amount, otherwise small contracts once let might be extended to cover larger operations, contrary to the spirit of the statute regulating municipal contracts.
    Mandamus is not the proper remedy for the enforcement of a claim for extra work done upder such contract, even though the claimant has a certificate of the work done, which certificate under the contract is conclusive. This, because it is not a question of the amount of work done, but whether there can be a recovery therefor under the contract.
    Appeal by the petitioner, the Morris & Oumings Dredging Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of September, 1906, denying the petitioner’s motion for a peremptory writ of mandamus directed to the comptroller of the city of New York requiring him to make payment of a claim.
    
      Pierre M. Brown, of counsel [Armstrong, Brown & Boland, attorneys], for the appellant.
    
      Theodore Connoly, Arthur Sweeny, John F. O'Brien with him on the brief [ William B. Ellison, Corporation Counsel, attorney], for the respondent.
   Clarke, J.:

This is an appeal.from an order of the Special Term denying a writ of peremptory mandamus requiring the comptroller to pay the .balance allegéd to be due to the plaintiff from the city upon a contract for dredging. This contract was let after public advertisement and competitive bidding. By the provisions; thereof the proposals, the sjieeifications and the bid were all made part of the con- ' tract. The proposals are entitled: Proposals for bids or estimates,. bid or estimate, bond, contract .and specifications for dredging about 50,000 cubic yards on the North, East and!Harlem Elvers, Borough of Manhattan.” Paragraph 13 provides! that “ The estimated quantities are given only to form a basis ©f comparison of bids and are not guaranteed to be accurate and are ¡not-to be considered as a binding feature of this contract.” The bid stated that.it . was For dredging about 50,000 cubic yards, etc.” The. contract ' was For dredging about 50,000 cubic yards, etc,,” and provided inter alla that no claim for -extra or additional work or materials should be made by or allowed to the contractor unless before the performance of such extra- or additional work the commissioner should have first authorized. the same in writing, and, further,, that “ The aggregate price to be paid for extra or additional wojrk or materials so authorized or ordered shall not exceed 'five per cent (5$) of the contract price or total cost of the work and materials,f also that “ This contract shall not be binding or of'any force unless the Comptroller of the city shall endorse hereon his certificate that there remains unexpended and unapplied, as provided in the Greater New York Charter, a balance of the appropriation or fund, applicable thereto sufficient to pay the estimated expense of executing this contract .as certified by the officer making the same.” Upon the contract appears the certificate of the -commissioner of doéks that the estimated expense of the execution of the contract would approximate the sum of $49,500 and the certificate of the comptroller that there remains unapplied and unexpended a balance of t'lije fund.applicable . to. this contract sufficient to execute the.same, viz.,¡ $49,500.

It appears that that amount was arrived at by multiplying 50,000 estimated cubic yards-by ninety-nine cents," the - price bid. The specifications provide'd that the work to be done was the dredging in. such slips or portions of. such slips or on the bulkhead wall areas "as should from time to time be directed by the engineer, and that “ This contract will terminate on. the 31st day of December, 1905, unless the estimated amount of dredging called for in the contract has been completed, previous to this date when it will terminate at the time the amount dredged in Cubic yards is as near the estimated amount in the contract (i. <?., 50,000 cubic yards) as it is practicable to order the work.”

• The petition sets forth that the company has actually dredged 59,391 cubic yards which at the contract price of ninety-nine cents per cubic yard, amounted to $58,979.09. . , ■

•It appears that there is no dispute as -to the amount of the dredging actually done by the contractor. The claim of the city is that it is clear from the language qí the contract that -inasmuch as this dredging was not to be at one particular place or for one particular job, but was to be done here and there as the exigencies of the harbor might require and the engineer of the dock department direct, that the repeated language of “ about 5'0,000 cubic yards ” fixed that amount, with the. addition of five per 'cent thereon set forth in the paragraph of the contract in regard tó extra work só that the sum total provided for was at the most 52,500 cubic yards. As to payment for this amount there is no dispute.

The provisions of law. in regard to the letting of contracts for public work are precise and definite as we have recently had occasion to point out in the two recent cases of Gage v. City of New York (110 App. Div. 403) and Cahn v. Metz (115 id. 516) and are to be observed in letter and. spirit.

The appellant claims, as I understand it, that there is no limit to the amount of work which may be done under this contract, and for which, having, done, it would be entitled to payment by the city. It says the phrase, about 50,000 cubic yards,” means any amount which the engineer might certify to as having been done. If this is so there would be nothing to prevent bids being advertised for a comparatively small amount of work, the size of which would not induce bidders to enter in to . competition' as the prospective remuneration might not justify the collection of the necessary plant, materials and men. Thereupon an award might be given at an extravagant price for a small amount of work which thereafter might be enormously enlarged. Such an interpretation does not seem reasonable, and while the very nature of the kind of work contracted for prevents that accuracy of descriptioijx which is possible in, say, a building operation, yet nevertheless the contract itself by the repeated use of the phrase about 50,000 cubic yards and the provision for an additional five per cent seems to fix by its own terms a limit beyond which lawful payment could not he made.

Mor is the proceeding by writ of mandamus the -proper way -to determine "the question here, in valved. The appellant claims that inasmuch as it has obtained the certificate of the engineer as to the amount of dredging done, and as the contract makes his certificate final and conclusive, that it has an absolute right to payment by the comptroller. The answer to that is that the contract does not make the certificate of the engineer final and conclusive as to the legal interpretation of the terms thereof. In tlxe absence of fraud or mistake sufficient to constitute constructive fraud, the certificate of the engineer is final and conclusive so far as the qiiantitv of exóávation done, but whether that amount is under the terms of the contract is a question for the court and not for the engineer, and, therefore, the proceeding is not well brought: !

The petitioner should be remitted to its action' in order that it may establish therein the validity of its claim against the city, if it can. ■ !'

The order appealed from should be affirmed, with costs and disbursements. !

Patterson, Laughlin and Scott, JJ., concurred.'

Ingraham, J. (concurring):

T concur with Mr. Justice Clarke upon the ground that a proceeding by mandamus is not the proper remedy, but that the petitioner should be remitted to anxaction at law .to- establish his claim,' if any, against the defendant. !

Order affirmed, with ten dollars costs and disbursements. -. Order filed. • ¡ 
      
       See Laws of 1901, chap. 466, § 149, as amd. by Laws of 1904, chap. 247.—[Rep. ■
     