
    Daniel L. Mott, Appellant, Respondent, v. The City of Utica, Respondent, Appellant.
    
      Street cleaning contract—construction of the specifications as to the part of the street covered thereby—authority of the city surveyor to direct the contractor— liability of the city for material, outside of street cleanings, removed.
    
    The specifications of a contract made by a city for the cleaning of its streets provided in subdivision 13 thereof that the work should consist in "cleaning the roadway from curb to curb.” Subdivision 14 thereof provided that the term “ cleaning the roadway from curb to curb ” should be interpreted to include, in addition to the roadway, all crosswalks, street crossings and intersections of cross streets to the outer lines of the street being cleaned.
    
      Held (McLennan, P. J., dissenting), that the specifications included all the work within the curbs of the street being cleaned and the cross streets, and covered no work on crosswalks which were on the same level with the sidewalks and between the curbs and the margin of the streets;
    That a provision of the specifications, that the work include “all crosswalks 9 street crossings and intersections of cross streets to the outer lines of the street being cleaned” would cover the crosswalks along the street being cleaned across the cross streets, so far as the same were within the curbs of the streets being cleaned, but would not cover anything but the roadway between the curbs of the various streets and cross streets;
    That as the contract provided that the work should be performed under the supervision and direction, and subject to the approval of the city surveyor, the contractor was obliged to obey his directions, and the city was bound by the action of the surveyor in directing the contractor to desist from doing certain work.
    The contract provided that the contractor should receive for the work of removing street cleanings and sweepings a certain price per great square of 1,000 feet. The contract and specifications made a distinction between street dirt proper and materials placed in the street by lot owners, but did not specify a price for the removal of the latter materials.
    The specifications provided as follows: “ whenever in doubt as to whether any material that may be found on the streets comes under the head of street dirt, the contractor shall remove the same, provided the quantity thereof is less than half a cubic yard, and report the fact to the office of the city surveyor,”
    
      Held (McLennan, P. J., and Spring, J., dissenting), that the city, having required the contractor to remove material placed in the street by lot owners, was liable for the reasonable value of such services.
    Appeal by the plaintiff, Daniel L. Mott, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 14th day of February, 1903, after a trial at the Oneida Trial Term as, by direction of the court, dismisses the second cause of action contained in the complaint.
    Also an appeal by the defendant, The City of Utica, from so much of said judgment as adjudges, upon the verdict of a jury, that the plaintiff is entitled to recover $512.99 damages upon the first cause of action set forth in the complaint, and also from an order entered in said clerk’s office on the 14th day of February, 1903, denying said defendant’s motion for a new trial made upon the minutes.
    The specifications referred to in the following opinion were as follows:
    '“12. The work called for by these specifications shall be performed by the Contractor under the direction- and subject to the approval of the City Surveyor. The Contractor shall be in readiness to enter upon the work as soon as the snow and icé shall have been removed from the streets in the spring of the year, and, after having received a week’s notice from the City Surveyor, shall proceed forthwith to prosecute the work until notified by the City Surveyor to discontinue. The work of street cleaning will not be performed during the winter or when the pavements are covered with snow and ice.
    “ 13. The work to be done under these specifications shall consist, first, in cleaning the roadway, from curb to curb, of all asphalt, sandstone, granite and brick pavements now laid or that hereafter may be laid in the City of Utica during the period of this contract; and, second, in gathering up and removing to suitable dumping grounds all street dirt or sweepings that may be collected from such roadways.
    “ 14. The term ‘ Cleaning the roadway from curb to curb ’ shall be interpreted to include, in addition to the roadway, all cross walks, street crossings and intersections of cross streets to the outer lines of the street being cleaned; and also, that part of the street lying between the rails of any street railroad tracks located on said street, no matter with what material that part of the street lying between said street railroad tracks may be paved.”
    
      William E. Seavy, for the plaintiff.
    
      John G. Gibson, for the defendant.
   Williams, J.:

The judgment and order should be reversed and a new trial granted.

The action was brought upon a contract for sprinkling, cleaning, sweeping and removing the dirt from the paved streets of the city of Utica. The first cause of action was for the recovery of profits lost by plaintiff,by reason of-his not being permitted to perform and receive pay for certain work claimed to be covered and included in the contract, viz., upon that portion of the crosswalks on the level with the sidewalks and not within, the curb lines of the streets.

The court held with the plaintiff as to the construction of the contract, and that it covered this work, and the jury rendered a verdict for lost profits in reference thereto of $512.99.

The city caused specifications to be made of the work and the contract provided that the plaintiff should do the work designated in the specifications pursuant to the provisions thereof. The specifications provided: Subdivision 13, that the work should consist in “ cleaning the roadway from curb to curb,” and subdivision 14, that the term “ cleaning the roadway from curb to curb ” should be interpreted to include, in addition to the roadway, all crosswalks, street crossings and intersections of cross streets to the outer lines of the street being cleaned. The question is as to the construction of this language of the 14th subdivision. The plaintiff claimed he was to clean not- only the roadway between the curbs, including the roadways into the side streets to the margin of the street being cleaned, and including such parts of the crosswalks as were between the curbs, but also all parts of the crosswalks which were on a level with the sidewalks and between the curbs and the margin of the streets. For a few months he did this latter work and'drew his pay therefor. The city surveyor then notified him that this work was not within his contract and forbade him doing it, and from that time on he did not do the work nor draw his pay therefor. He, therefore, lost whatever profits there were in doing that work, if it was included in his contract. We think the .proper construction of the language confined all the work within the curbs of the street being cleaned and the cross streets, and covered no work on a level with the sidewalks and between the curbs and the margin of the. streets.

The language of subdivision 13 alone would confine the work to the curbs of the street being cleaned. The provisions of subdivision 14 required that the work include, in addition to the roadway, all cross walks, street crossings and intersections of cross streets to the outer lines of the street being cleaned,” This would cover the crosswalks along the street being cleaned across the cross streets, so far as the same were within the curbs of the streets. We think it was not the intention to cover anything but roadway between the curbs of the various streets and cross streets. While the construction to be given the language used in the 14th subdivision is not so clear as it might be made, we think this a more reasonable one than that given by the trial court. This work has never in fact been done, and the city should not be compelled to pay profits never earned in fact upon a doubtful construction of the contract. This verdict of the jury should, therefore, be set aside, and the judgment and order entered therein reversed. We do not think the objection made by the city, that the city surveyor had no authority to prohibit the doing of this work, is well taken. The contract provided that, the work should be performed under the supervision and direction and subject to the approval of the city surveyor. The plaintiff could not go counter to his directions and when he forbade the work to be done the plaintiff had to obey. It was the city that spoke through its surveyor.

The second, cause of action was to recover compensation for the sweeping and removal of material which was not street dirt, and was not material for the removal of which plaintiff was paid under the general provisions of the contract. The court would not permit any evidence to be given to establish this cause of action, but held that the plaintiff was compelled to remove all material, whether street dirt proper or material placed in the street by lot owners along the street taken from their yards or gardens, and was entitled to no pay for such work beyond the provision in the contract for compensation for the removal of street dirt. In this we think the court erred. The contract and specifications make it quite clear that a distinction was made between street dirt proper, and materials placed in the street by lot owner’s. The plaintiff was to remove all street cleanings and sweepings, and was to be paid for this work a certain price per great square of 1,000 square feet, according to the kind of pavement cleaned. This was the provision of the contract itself, and of subdivisions 13, 14, 18, 20 and 21 of the specifications. And then subdivision 26 provided, “ whenever in doubt as to whether any material that may be found on the streets comes under the head of, street dirt, the contractor shall remove the same, provided the quantity thereof is less than half a cubic yard, and report the fact to the office of the city surveyor.” The contract provided a price for the removal of street dirt only. Other material was. not" expected to be in the street. Lot owners had no right to put their refuse upon the streets, and the city ought not to pay for the removal thereof. The contract provided; however, for the contingency that some such refuse would be placed in the street, that if the amount was small, the contractor should remove it and report it to the city. If the amount was large, no provision was made for its removal at all. The city had power to compel the lot owner to remove such refuse from the street, whether the amount was large or small, and might compel him to pay for its removal There was no reason why the contractor should remove it without pay, and the contract did hot provide for such payment. It was work done, therefore, for which no compensation was expressly provided. Having required the plaintiff to do the work, the city was liable for what it is necessarily worth.

It is said it would be difficult to determine how much material not street dirt was removed, and what it was reasonably worth to remove it. We are not interested in that question now. The plaintiff offered to make proof on the subject, and was not permitted to give any evidence whatever. His evidence was all excluded and a nonsuit granted upon the theory that he was by the contract required to remove all materials of this character, less than one-half a cubic yard in amount, without any compensation other than that provided generally by the contract.

The judgment entered upon this decision of the court should be set aside and a new trial granted. The judgment as a whole, therefore, and the order denying a motion for a new trial should be reversed and a new trial granted upon'questions of law only, the facts having been examined and no error found- therein.

Hiscock and Stover, JJ., concurred; McLennan, P. J., dissented ; Spring, J., concurred in the reversal upon the defendant’s appeal and dissented from the reversal upon the plaintiff’s appeal,

The entire judgment and. order denying motion for new trial, reversed and new trial ordered, with costs to abide, event, upon questions of law only, the facts having been examined and no error found therein.  