
    City of Middletown, Appellant, v. The Ætna Indemnity Company of Hartford, Connecticut, Respondent, Impleaded with Thomas M. Lesher and Others, Defendants.
    Second Department,
    October 23, 1907.
    Surety — building contract—immaterial deviations from plan.
    The surety of a municipal contractor does not escape.liability to the city which has been compelled to complete the work on the contractor’s default by reason of harmless and immaterial deviations from the plan made in good faith.
    Thus, Where the original contract required the construction of a pipe line in trenches to be straight or curved as directed by the engineer, and with the assent of the surety the contract was changed so as to require the pipe to be laid in a tunnel, the surety is not relieved because the city tunneled in a straight line instead of following the exact center of the right of way', which was curved, whereby the cost of construction was actually reduced. The city's right to determine the line under the original contract survived in the modification thereof, and, moreover, the construction adopted was to the defendant's advantage.
    The rule that the liability of sureties is strictissimi juris does' not apply to such contract; but the question is whether another contract has been substituted.
    Moreover, assuming that the original trench was to be in the center of the right of way, the surety’s assent' to the substitution of á tunnel carried with it all rights necessary to make the change practicable, among which was the right to build a straight tunnel, the same being more inexpensive and practicable than a curved one.- • •
    Hooker and Rich, JJ., dissented.
    Appeal by the plaintiff, the City of Middletown, from a judgment of the Supreme' Court in favor of the defendant, The JEtna Indemnity Company, entered in the office of the clerk of the county of Orange on the 9th day of March, 1907, upon the dismissal of' the complaint by direction of the court at the close of the. plaintiff’s case, on a trial at the Orange Trial Term, and also from an order entered in said clerk’s office on the 9th day of March, 1907, dismissing "the complaint and granting to said defendant an extra allowance of costs.
    . Thomas Watts [Abram F. Servin with -him on the brief], for the appellant. • •
    
      Clarence Lexow [Frank H. Finn with him on the brief], for the respondent.
   Gaynor, J.:

The plaintiff in supplying itself with water, made a contract for the construction of- a pipe line; 19,300- feet long.- Á section of it 2,200 feet long was to be laid in a deep tunnel, instead of a deep trench, by a modification of the contract in which the surety joined. The contractors abandoned the work after doing part of it, and this action is against their surety on its.bond for performance. The complaint was dismissed on the close of the plaintiff’s evidence on the ground that the. pleaded defense that the plaintiff and the contractor changed the contract by an agreement .'made between them without the consent of the Surety was made but. The claim is that the. tunnel through the said section, of' 2,200 feet was changed hi the detail of doing the work from a curved line to^a straight line. . The contract and specifications- show that, the pipe line was of 20-inch pipe and' was to'-' he laid iii a right of way of t,lie general width of 66 feet acquired by the city, the plaintiff. The map used to acquire the right of way showed the centre line thereof,, but not the side lines. They were determinable by measurements from the centre line, the width of the right of way being given. This samé map was'used in the specifications and contract to show where the pipe line was to be laid. The centre line, was all that it showed, as already stated, but the specifications, which with the map were made part of the contract, stated that the general width of the right of way for the pipe line was 66 feet. The contract does not say in word's that the pipe line is to follow the s.aid centre line, but the defendant, the surety, claims that that is the contract, nevertheless, by reason of the said map being part thereof.

This may be granted, and still the dismissal would be error.. The. evidence,'including the map, shows that the right of way over the said-section'of, 2,200 feet curved or waved to right and' then to left several, times, instead of its sides being straight fines. There was-, no, agreement made changing the contract for a - tunnel;' but in excavating the tunnel the. contractors did not-follow the curving or .waving centre line of the right of way, hut a straight line, from the point of beginning 'on the centre line, and the city’s engineer in charge allowed this, and' after the abandonment the city' completed the work in the same way.' In this way the tunnel three times deviated from the centre line and returned-to and crossed it. Sometimes the deviation was very little, and'once as far.'as 38'féet, but always keeping within the right of way, which along there was 99 feet wide. The result was that the tunnel was 16 inches shorter than if it had followed.the' centre line, and cost at least that much less> the contract price being $9 the running foot. The result avoided .was the great difficulty, to say the least, and the extra éxpense, of following the centre line in excavating so small a tunnel (5 feet wide by 6 high) on a constantly curving line through .rock; for the evidence is that it is impracticable to do so. And the evidence shows that there was no reason at all to follow the centre line; that it was wholly unnecessary; that it would affect the use of the tunnel in no way to make it on a straight line instead of constantly curving or waving; and moreover that with such small tunnels it was the custom to deviate to avoid difficulties and obstacles. No agreement changing the line of the tunnel having been made, the only question presented is, therefore, whether the contract was substantially carried out (if, indeed, the case has any standing, the allegation of the answer of an agreement by the parties changing the contract having failed). If it was, the plaintiff is entitled to recover and the dismissal was error. The question is the same as though the contractors had an action for the contract price, and the city denied the completion of the contract, in that'the tunnel deviated from the centre line of the right of way. Such a defense could not prevail. A substantial compliance would enable the contractor to recover, and it could not be said that there was not such a compliance, for the deviation would be harmless and immaterial, and made in good faith (Glacius v. Black, 50 N. Y. 145; Nolan v. Whitney, 88 id. 649; Rowe v. Gerry, 112 App. Div. 358). In an action against sureties,- the rule of construction of the principal contract is the ordinary rule of construction of contracts. The rule that the liability of sureties is striotissimi juris does not apply thereto, but only to the question whether another contract has been substituted, in which case the surety cannot be held, for the contract he went surety for no longer exists (Smith v. Molleson, 148 N. Y. 241; Ulster Co. Savings Inst. v. Young, 161 id. 23). The question here is whether the principal contract was performed, and it cannot be said as matter of law that it was not.

When the strict letter of the contract is examined, it will also be seen that it is not that the trench and tunnel shall strictly adhere to the centre line, for it provides that the work shall be done under detail plans to be furnished by the engineer as it progresses, and that “The trenches shall be'Straight and curved as directed ”, i. e., by him ; and the substitution of the tunnel for the trench on the section in question left, this still in force.

It is argued' that the profile which formed part of the specifications must have had reference to a fixed surface line in showing the depth of excavations, ^nd that that .was the centre line of the right -of way; but the evidence of the engineer who made it is to the contrary,' viz., that after the custom in the making of such maps, the surface line shows the general or average surface elevation at the qfiace in the right of way, instead of along a fixed line.. -.

There is another reason .why the dismissal was erroneous, even assuming that the original contract required the trench to follow the centre line. As has already been mentioned, the original contract requiring the pipe to be. laid in a trench was by agreement of the parties and the surety changed by substituting a tunnel along the section of 2200 feet in question. The change was a concession to the contractor and' surety, it being for their benefit. The trench for most of the distance -was to be from 30 to 35 feet deep,,all through rock excepting the top 13 feet, and the object of the change was to make the work less expensive. The agreement of change does not say the tunnel shall follow the centre line; it. simply substitutes a tunnel for a trench, except that' the tunnel is to- be 9 feet lower than the trench. It v-ould be easy enough to follow, the centre line on the surface in digging the trench,- but to follow that constantly curving line in building such a small tunnel through rock 39 to 41 feet below the surface would be a.very different matter.. The evidence is that it would be impracticable. How the change from trench to tunnel carried with it all things necessary to make such change practicable." The jiarties did not mean an impracticable change. The contrary nuist be presumed. If it were possible at all to approximately excavate the tunnel through rock oh the constant curve of the centre, line, instead of on a straight ..line, or straight lines, the gre'at nicety and difficulty of it would add greatly to the expense, whereas the object of the change was to lessen the’ expense. There was no reason to do so, and'it would have been folly and detrimental.to the contractor and the surety to do so.

When this case was here before (97 App. Div. 344) the record made it appear to ns that there was a substantial departure from the contract in doing the work, to the injury of and which therefore released the surety, i. é., a “ change of route frbm that around the hill to the straightened line through it ”, as our opinion says; and we properly concluded that such change “ released the surety in the absence of its assent”. We now know from the present record that there was no such agreement or change, but that the contract' was substantially performed.

The judgment should he reversed.

Jenks and Miller, JJ., concurred; Hooker and Rich, JJ., dissented.

Judgment reversed and new trial granted, cost§ to abide the event.  