
    POMEROY P. DICKINSON and others, Appellants, v. THE WATER COMMISSIONERS OF THE CITY OF POUGHKEEPSIE, Respondents.
    Oont/ract— construction of— “hard pan”
    
    Under a contract, providing for earth excavation at one price and rock excavation at-another, and that work not therein classified shall be paid for at cost and fifteen per cent added; Held, to be error to exclude evidence that “ hard pan ” was neither rock nor earth.
    Appeal from a judgment in favor of the defendant. The action was brought to recover for work done, in removing material from the water space of the reservoir in Poughkeepsie.
    
      A. Anthony, for the appellants.
    
      Thompson & Weeks, for the respondents.
   Tappen, J.:

The plaintiff entered into a contract in writing with the defendants, for work on a reservoir, and which contract contained the following clause: “Work not herein classed or defined as to price, and which said contractors may be directed by said engineer in writing to do, shall be paid for at cost and fifteen per cent added.” The contract provided for earth excavation at one price, and rock excavation at another price. The plaintiff brought this action to recover compensation for other excavations which he claimed were not rock or earth, and were therefore not classed. The excavation in dispute was known as hard pan. At "the trial, the plaintiff offered to prove that it was neither rock nor earth, and not included in those items in the contract. The court refused to admit the testimony, and nonsuited the plaintiff. We are of opinion that such testimony was admissible and that its rejection was error.

The judgment should, for that reason, be reversed, and a new trial ordered, costs to abide event.

Present — Tappen and Talcott, JJ.

Judgment reversed and new trial granted, costs to abide event.  