
    MacKnight Flintic Stone Company, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
      Contract to malee a cellar waterproof—what evidence as to performance presents a question for the jury—expert testimony — use of an ejector.
    
    A contractor, in support of a claim for work done in the construction of a cement floor, guaranteed by him to be absolutely waterproof, simply testified generally that the work as done fully complied with the plans and specifications. It appeared, however, that after the work was done water came up through it, and that the contractor thereupon inserted under the floor an instrument known as an ejector for the purpose of pumping out the water, which, while it was at work, did so and kept the premises dry.
    
      Held, in view of the contractor’s general and inconclusive statements, it was for the jury to say, under the circumstances of this case, in which the work did not fulfill its purpose, but failed in the very essence of it, whether the result would have been the same if the work had really been done in precise accord with the specifications, especially as there was no bursting of the masonry;
    
      That it was error not to admit the testimony of an expert familiar with the ground and surrounding conditions as to whether, in his opinion, the cellar could have been made water tight if the plans and specifications had been complied witk;
    That the contract was not executed by the furnishing of the ejector, as the contractor was bound to furnish, a water-tight, not a water-drained, cellar;
    That the act of taking possession of the premises did not constitute an acceptance of the work or waiver of the defect therein, since the circumstances showed that there was not a voluntary acceptance’of the work as a performance of the contract, and negatived the idea of a promise to pay therefor.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of .the county of New York on the 16th day of October, 1896, upon the verdict of a jury rendered by direction of the court after .a trial at a Trial Term of the- Supreme Court held in and for the county of New York.
    The action is brought upon a contract between the.plaintiff and the defendant, executed September 25,1895, whereby it .was agreed that “ The party of the second part (the plaintiff) will furnish at his own cost and expense all the materials and labor for the purpose, and make water-tight the boiler-room, coal-room, cellar, &c., of the court house and prison of the 7th District Police Court and 11th Judicial District Court on West 53rd and 54th streets, between 8th and 9 th avenues, in the manner and under the conditions prescribed and set forth in the annexed specifications, which are hereby made part of this contract.” The specifications provided for the construction of a floor of Portland cement concrete and the erection of iron columns ■ sufficient to exert a specified pressure. Up these columns to a designated height a water-proof lining was to be carried. The columns were then to be encased in iron sleeves, the space between these and the lining to be filled in with mortar. The lining was also to be carried up the walls to a certain height, and to be protected by additional walls of a specified size and construction. The work was to be commenced upon a day fixed by the commissioner of public works, and to be finished within thirty days thereafter. It was provided that neither an extension of the time for any reason, nor the doing and the acceptance of any paid of the work, should be deemed a waiver' of the right to abrogate the contract for abandonment or delay. The plaintiff covenanted that “ at the entire completion of the building all of the work must be gone over by the contractor and turned to the city by him in perfect order and guaranteed absolutely water and damp proof for five years from the date of the acceptance of the work. Any dampness or water breakage within, that time must be made good by the contractor without any cost or expense to the city.”
    The only_witness for the plaintiff was MacKnight, its president. He testified that the work was begun, on the commissioner’s order, September 30, 1895, and finished on November 4,1895. He stated generally that the work as done fully cómplied with the plans and specifications. After it was turned over to the defendant it was found that water came up through the sleeves surrounding the columns and at the base of the walls. Thereupon, by permission of Duncan, the architect, the plaintiff inserted under the floor of the cellar an automatic instrument known as an ejector, for the purpose of pumping out the water as it rose. It was conceded that this instrument, while at work, kept the premises dry. If it was turned off, however, the water would rise in. the course of a day or so and cover the floor of the cellar.
    The defendant offered no direct evidence of details wherein the plaintiff’s work did not conform to the specifications, but attempted to introduce the evidence of experts in the business of waterproofing cellars as to whether the plans and specifications were sufficient to make the cellar watertight. The evidence was excluded and an exception taken. At the close of the evidence, the court directed a verdict for the plaintiff for the full amount of the contract price, and the defendant excepted.
    
      Chase Mellen, for the appellant.
    
      L. Laflin Kellogg, for the respondent.
   Barrett, J.:

It is claimed by the plaintiff that it became entitled to the contract price upon doing the work in accordance with the plans and specifications, and that, if leaks occurred within five years after completion, it simply became bound, to remedy them, without prejudice to the right to recover the agreed amount. This contention it is not necessary to consider, for we think it was error to take from the jury the question whether, in fact, the work done conformed to the specifications. MacKnight testified that it did, but this was merely a general statement amounting to but little more than his conclusion or opinion. There is no pretense that he was present when the work, or' even the substantial part of it, was done. There is,, in truth, no evidence of the amount of- time which MacKnight devoted to. its 'inspection, nor evidence as to the nature of such .inspection. Under these circumstances, if there were no other proof or attempted proof, we think the question of compliance with the specifications would, at the very least, have been for the jury. A compact and solid floor had been provided for, and a lining of waterproof material for the columns and walls. In spite of this, the water forced its way up through the floor and the base of the walls, and up around the iron jackets to the columns. Plainly, in view of MacKnight’s exceedingly general and inconclusive statements, it was for the jury to say whether this could have happened .if the work had really been done in precise accord with the specifications — especially as there was no bursting of the masonry.

In view, too, of. this state of the evidence, we think expert testimony upon the subject was competent, and that it was error to rule out the testimony of an expert who was familiar with the ground and the surrounding conditions. We refer to the witness Yaughan. He had been in the business of waterproofing cellars for forty-two years, and was fully acquainted both with the plans and specifica•tions and with the condition of these premises, having been a bidder for the contract which the plaintiff obtained, and having thoroughly gone into all these matters in order to make his bid. He was asked to say whether, in his opinion, the cellar could have been made watertight if the plans and specifications had been complied with. The question was excluded, and the defendant’s counsel excepted. Later the learned trial judge seems to have altered his views as to the competency of such evidence, for the architect, Duncan, was allowed to state liis opinion that the cellar would have been waterproof if the work had been done as agreed; that a break the size of a pinhole would have caused the leak, and that the leak occurred because the waterproofing was not intact and continuous. This evidence should have been submitted to the jury for their consideratian. It further weakened the-already weak and inconclusive testimony of MacKnight, and it thus strengthened the defendant’s j>osition in requesting the submission to the jury of the question of fulfillment. Of course expert testimony is inadmissible where the matter at issue is the existence or non-existence of a fact cajiable of direct proof, if such proof is supplied. That, however, is not this case.

Nor do we wish to be understood as intimating that plaintiffs, in this class of cases,-must be held to an unreasonable measure of proof. When, to all appearance, work has been done' as required, and fulfills its purpose, general testimony to this effect may and should suffice. But, where the work does not fulfill its purpose, but fails in the very essence of it, the mere general statement of an interested party that he has fulfilled his contract, or testimony substantially to that effect, cannot be treated as adequate even if the opposite party is unable to point out in detail the specific defect.

It is next claimed that whether or not the premises were made watertight, in accordance with the plans and specifications, the plaintiff at least made them dry, and that the defendant thus became liable either by reason of the plaintiff’s inherent right to complete in this manner or on. account of the acceptance by the defendant’s agents of the work so completed. The plaintiff had no such inherent right. It was bound to furnish the defendant with a watertight, not a water-drained, cellar. As the defendant’s counsel well states : “ The specifications were minutely drawn for the purpose of providing a resistance to the water pressure, not to relieve it.” The premises are only dry when the ejector is working, and, if that apparatus should wear out or become damaged, it would be necessary to take up the floor and put in another. Speculation as to whether the new arrangement is as beneficial or convenient to the defendant as that contracted for is quite out of place. It is plain that the conditions are not the same, and it is not for the court to determine whether they are as favorable or not. The defendant contracted for a particular thing, and was entitled to get that and not a substitute for it.

The defendant’s agents never gave the plaintiff this right to vary the contract and to substitute a makeshift for performance. They could not have done so, for the Consolidation Act (Laws of 1882, chap. 410, § 64), while providing that contracts are to be made by heads of departments, requires that they shall “be founded on sealed bids or proposals,” and the specifications, forming part of the bid in this ease, could not have been departed from' even by the commissioner who executed the contract upon behalf of the city (Bonesteel v. The Mayor, 22 N. Y. 162); but, in fact, no agent of the defendant consented to accept the use of the ejector as a fulfillment of the contract, nor did MacKnight insist, as á condition of putting it in, that it should be accepted as full performance.

Finally, there was no acceptance of the work as done constituting a waiver of the defect, or any conduct estopping the defendant.from now insisting upon the non-fulfillment. On March SO, 1896, Commissioner Oollis wrote to the architect in answer to a number of letters from the latter as to the condition of the court house building. In this letter he stated that there could be no further delay; that it was necessary to take possession of the building; that this should be done, and the use of the ejector continued, without prejudice to the defendant’s rights against the plaintiff, and that no certificate should, .for the present be given to the latter. Accordingly, possession was taken, and boilers, coal bins, engines and electric-light apparatus put in. There was here no acceptance of the work.. The commissioner simply acted upon the existing condition of things. This was his plain duty. There was nothing in his determination at that late day to take possession of the building and to make it ready for occupancy which can change or qualify the defendant’s right to insist upon the fact of non-fulfillment. Such right would be affected only by an actual, voluntary acceptance of the work as a fulfillment of the contract, with an express or implied promise to pay therefor. There is nothing of the sort here.

We think, therefore, that the questions presented by the defendant’s requests should have been submitted to the jury, and that the direction of a verdict was error.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

■ Van Brunt, P. J., Rumsey, Williams and Patterson, JX, concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  