
    Austin D. Lord and Others, Copartners, Doing Business under the Firm Name and Style of Lord & Hewlett, Respondents, Appellants, v. The City of New York, Appellant, Respondent.
    First Department,
    January 31, 1916.
    .Contract — agreement employing architect to prepare plans for municipal building — restriction of cost of construction to amount of appropriation— design for building costing more than sum appropriated — when architects cannot recover on contract — approval of plans by borough president.
    Where a contract employing architects to prepare plans and specifications for a municipal building provided that the plans, if not satisfactory to the borough president, should be revised so that the estimated cost, including architects’ fees, etc., shall be within the amount appropriated, the architects cannot recover from the city the agreed price of the plans, where as a matter of fact at the time they were approved by the borough president the estimated cost of the building exceeded $3,000,000, and the only sum at that time actually appropriated by the city for that purpose amounted to $500,000.
    The court cannot read into such contract a provision relating to future appropriations which might be made, for that would make a new contract, and would moreover remove limitation upon the cost.
    As the limitation restricting the cost of carrying out the plans to the moneys appropriated was binding not only upon the architects but upon the borough president, his approval of the plans was not effective as a waiver of the terms of the contract.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of July, 1915, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and also from an order entered in said clerk’s office on the 26th day of June, 1915, as resettled by an order entered in said clerk’s office on the 29th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.
    Appeal by the plaintiffs, Austin D. Lord and others, from so much of said judgment as dismisses the second cause of action contained in the complaint, pursuant to the direction of the court.
    
      
      Jeremiah T. Mahoney, for the plaintiffs.
    
      E. Crosby Kindleberger, for the defendant.
   Page, J.:

The action was brought by a firm of .architects who were employed by the president of the borough of Brooklyn to prepare plans and specifications for a new court house and municipal building in said borough. The contract provides, among other things: “(2) * * * If the said prehminary drawings, specifications and estimate are not satisfactory to and approved by the President, then the architect shall and will revise and correct the same so as to conform to the suggestions, criticisms and requirements of the President, and so that the estimated cost, including architect’s fees and the cost of surveys and inspection shall be well within the total appropriation. (3) The City hereby retains and employs the architects to perform the aforesaid services and in consideration of his [their] performing them the City hereby agrees to and with the said architects to pay to them upon the completion and approval by the Borough President of the drawings and specifications called for by or in clause two (2) hereof the sum of ten thousand dollars ($10,000).”

The plans and specifications and estimate of cost of the building were made and approved by the president of the borough and the municipal art commission. The estimated cost of the building was $3,300,000. The first cause of action upon which the plaintiff has secured judgment, and from which the city appeals, was for the $10,000 under the agreement. Prior to making the contract the only appropriation that had been made was for $500,000 to provide means for the erection of a new Municipal Building for the Borough of Brooklyn.” The appellant argues that the estimated cost based on the plans and specifications prepared, instead of being well within the total appropriation, exceeded it by $2,800,000, and that by reason thereof the plaintiff failed to bring himself within the terms of his employment and cannot recover.

We must assume that the words of the contract express the intention of the parties and when they state as a hmitation upon the estimated cost that it shall be within an appropriation they refer to an existing appropriation, and as there was one such appropriation and no other, they must of necessity have referred to that appropriation. To adopt the respondent’s contention and substitute the estimated cost for which they expected an appropriation to be made would not alone make a new contract, but would remove all limitation within which the cost was to be kept. It is clear, therefore, that the plaintiffs did not comply with the terms of their employment. (Horgan & Slattery v. City of New York, No. 1, 114 App. Div. 555, 561; Bernstein v. City of New York, No. 2, 143 id. 543.)

It has been suggested that the clause limiting the cost should be construed to apply to the agreement of the architects to revise the plans and specifications to meet the requirements of the borough president. And he having approved the plans and not required them to be so modified, the architects are entitled to the fee. The limitation was binding not alone on the architects, but upon the borough president. He had no power to waive or change the requirement that the cost should be within the appropriation. (Bernstein v. City of New York, No. 2, supra, 545.) It is argued that a public building, for the purpose that this was to be used, could not have been built for the sum appropriated, and, therefore, the parties were justified in believing that further sums would be appropriated. The difficulty with this argument is that we are required to prophesy the future action of the board of estimate or to exclude entirely the words referring to the appropriation. The contract may have been a foolish one for the parties to have made. We, however, are not required to make another one for them, but to interpret the contract they have made according to the language used by them. The judgment as to the first cause of action should be reversed, with costs. Judgment was given for the defendant on the second cause of action, and the plaintiffs appeal from that portion of the judgment.

The second cause of action was predicated upon an agreement made by the borough president with the plaintiffs to pay them an amount equal to one and one-fourth per cent of the total estimated cost. Although the complaint alleges that this contract was reduced to writing and submitted to the corporation counsel for approval, it does not allege that it was approved or signed. The justice dismissed this cause of action, however, on the ground that the borough president had no power to make a contract for the architects to complete detail plans and for supervision until there had been an appropriation for the building which was the subject of the plans and specifications.

I find no error in the action of the court in dismissing this cause of action.

Both sides moved for the direction of a verdict. The part of the judgment from which the defendant appeals should he reversed, with costs. The part of the judgment from which the plaintiffs appeal is affirmed, with costs, and judgment directed for the defendant dismissing the complaint, with costs.

Clarke, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

On defendant’s appeal, judgment reversed, with costs; on plaintiffs’ appeal, judgment affirmed, with costs, and judgr ment ordered for defendant dismissing complaint, with costs. Order to he settled on notice.  