
    Hedden Construction Company, Respondent, v. The Rossiter Realty Company, Appellant.
    First Department,
    February 4, 1910.
    Contract — building contract — new specifications including extra work — when contractor may recover.
    Where during the erection of a building the owner approved in writing new specifications prepared by his agent embracing work not called for by the original contract, the contractor may recover therefor as extra work, although the new specifications provided that no payment should be made for extra work not ordered in writing: As the new specifications incorporated extra work and were approved in writing by the owner, such work was rendered under his written order. The provision requiring a written order for extra work applied only to future orders for-such work.
    Appeal by the defendant, The Rossiter Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes,
    
      
      William II. Harris, for the.appellant.
    
      Frederick Ilulse, for the respondent. -
   Dowling, J.:

. On May 23, 1906, plaintiff and ¡defendant entered into a contract whereby the former agreed to erect a reinforced concrete garage for the latter at an' agréed price of $100,000, “ as shown oil the drawings and described in the specifications prepared by the; contractors architect, which drawings and specifications are identified by the signatures of the parties hereto and become hereby a part of this, contract.” , ; ..

.While the drawings and specifications were never signed by the parties i.t is not disputed that there were plans and specifications then in existence, prepared by the architect, which bore date April, 1906. ' The work of construction was to be done under the supervision of the contractor’s architect, and it was agreed that such additional drawings and explanations as may be necessary to Retail and illustrate the work to be. done are to be furnished- by. architect, and they \i. e., the parties] agree to conform to and abide, by the same so far as -they may be consistent with the purpose and intent of the original drawings and specifications.” ' ( i ■

.It sufficiently. appears that the building could have been, and actually was, commenced and carried on under these plans and specifications, and that in fact they were sufficient to obtain the approval of the' building department.' There was much Uncertainty upon defendant’s part as to various details of the work which it had -delayed final determination upon, and because of changes made, .the plans show the record of revisions made in-the months of July, September, October and November. The specifications are headed “ skeleton specifications,”, and are barren of many details, usually found, therein.. The defendants had reserved to themselves certain work which was without plaintiff’s contract, but for which the latter had to, make provision and by reason of defendant’s delay-in furnishing data plaintiff’s work was retarded as it repeatedly notified defendant. -Finally on September eighth, after being further pressed for details of- the turntable pits gasolitté vaults, and elevators, heating, electric conduits and other items defendant wrote plaintiff a letter containing the following paragraph: “ Under the circumstances we have decided to ask Mr. A. P. Boiler, Jr., Civil Engineer, to undertake for us the supervision, of the work called for by your contract. He will be able to answer all your inquiries -and he has full authority to represent us. We have-already replied to your inquiry regarding the gasoline vault and we respectfully refer you to Mr. Boiler for information on the other subjects. He will call upon you Monday morning shortly after ten o’clock to discuss these matters.” Thereafter Boiler met the architect and as a result certain work was ordered to be done by the former which was not included in the original plans and specifications. ' The architect claims that Boiler agreed that these additional items should be paid for as extra work, but this Boiler denies. In any event, the items were all incorporated in new specifications which were prepared by the architect and Boiler, and which were accepted and approved in writing by the defendant on December 14, 1906. The additional and further work so required to be done constitutes the extra work sued for herein.

The new or revised specifications contained the following clause: “Ho payment will be made for extra work, that has not been ordered in writing, and all bills for extra work must be rendered before the final certificate is issued.” Defendant ordered certain extra work in writing, and for this it has paid in full, but it resisted plaintiff’s claim for $8,186.65 as being for extras not ordered in writing, and, therefore, invalid. Upon the trial there was submitted to the jury for a special finding the question : “ ts the plaintiff’s claim for extra work established ? ” which they answered in the affirmative, and they awarded plaintiff the sum of $8,145 as the reasonable value of such work.

It seems clearly established by the evidence that the work for which recovery was sought was extra Work. Concededly, it was not embraced within the plans and specifications originally prepared, in existence at the time of the making of the contract, and with reference to which both parties acted. Defendant concedes-that its contract with plaintiff was made on May 23, 1906. .This being so, it was complete in itself, and all that plaintiff undertook to do was to perform fully all the work called for by or reasonably within the scope of such plans and specifications, or of such further plans and specifications as might be made to explain thé work therein' called for.

Defendant could not require additional work never contemplated when tlie contract was made, without, compensation. Boiler himself admits that none of the items sued for is c'overed in anywise by the original plans. Being acknowledged to be extra work a-nd without the contract, defendant would be clearly liable to pay for them, unless its contention is correct that, as extra work, its-price ■cannot be recoverable, because it was not ordered in writing. But this plea is Unavailing, ■ because, as Boiler himself testified, every item of extra work had been incorporated in the revised specifications, and when they were accepted and approved in writing by defendant, they became defendant’s written order for the doing of this very work. The prohibition against recovery for extra work not ordered in writing then became operative as'to future orders for such work, and there lias been no recovery for any such order herein.

It follows, therefore, that the judgment and order appealed from must be affirmed, with costs.

Ingraham, P. J., -McLaughlin, Clarice and Scott, JJ., concurred.

Judgment and order affirmed with costs.  