
    Litchfield Construction Company, Appellant, v. The City of New York, Respondent.
    
      Highway — contract — return of deposits.
    
    Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 6th day of August, 1913, dismissing the complaint on the merits.
   Per Curiam:

In view of the fact that the plaintiff as contractor did not repave or restore the pavement, which was done by the bureau of highways, we cannot adjudge a return of plaintiff’s deposits with the borough president as a condition for obtaining the permits. Plaintiff urges that all the repaving specified in its bid and in its contract was item 36 for “ 90 square yards of asphalt block pavement on a concrete foundation, outside of trench line, to be taken up and relaid.” But being outside of the excavation, which was to be one foot wider than the external width of the sewer, such pavement was virtually an extra. Hence there is no inference that this 90 yards was intended to cover all the pavement over the sewer and within the lines of the .trenches which plaintiff was to relay. Clause TT of the contraet clearly provided for the city’s charge for inspecting the back-filling. The further provision that the amount of such deposits was to be based on the measured area of the surface to be repaved at different rates figured upon the different sorts of pavement, also indicated a deposit to cover the cost of relaying the pavements which, under the permits, the plaintiff was allowed to take up. In face of these terms, so explicitly set forth, we cannot hold that the deposits were only to secure the city for loss or damage to paving material or for broken curbstone. This sewer contract, read with the ordinance of 1903, was for the entire job, not only the pipe set in the trenches and covered over, but the important and final work of putting down again the paved street surface. That for this the city took cash deposits, made it none the less obligatory upon the contractor. Experience shows that final repaving has to be deferred to allow time for the fill to subside, also that the borough highway bureau, and not the contractor, is better fitted to restore the street. A like claim for return of deposits for permits made by a Richmond county sewer contractor was rejected by the trial court, whose adverse judgment was affirmed in the First Department. (Merrill-Ruckgaber Co. v. City of New York, 160 App. Div. 513.) The judgment dismissing the complaint is, therefore, affirmed, with costs. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. Judgment affirmed, with costs.  