
    F. V. Smith Contracting Company, Respondent, v. The City of New York, Appellant.
    First Department,
    October 19, 1906.
    Contract — municipal contract to lay curbs — when contractor not . required to pay for removal of obstructions—when length of delay in completing work question of fact.
    Although a municipal contractor laying curbs is required by the terms of his contract to remove at his own cost any incumbrances or obstructions which may be upon the line of work, he is not required to remove buildings or telegraph poles belonging to others standing in the line of the proposed improvements, because he has no legal right to remove them. Delays in the work over the time set by the contract caused by such obstructions should not be charged against the contractor in figuring the amount of the contract price the municipality is entitled to withhold under the terms of the contract.
    
      So, too, Sundays, holidays and certain specific months in which the contractor was not required to work by the terms of the contract, should be deducted in figuring the number of days taken by him to complete the work.
    When the contract provides that the municipality is entitled to deduct from the amount earned under the contract a certain sum for each day taken by the contractor to complete the work in excess of a specific number, and when under the evidence it is a question of fact as to how much overtime should be charged against the contractor, it is error to direct a verdict for the contractor, but the question should be left to the jury. Facts raising such question of fact stated.
    Appeal by the defendant, 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 23d day of May, 1905, upon the verdict of. a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      Terence Farley, for the appellant.
    
      L. Laflin Kellogg, for the respondent.
   O’Brien, P. J.:

The action was brought to recover $1,990, balance due under a contract for grading, curbing, etc., Longwood avenue from Tiffany-street to the Southern boulevard. It is conceded that the amount earned under the contract was $28,714.47, of which there was* paid to the plaintiff $26,724.47, leaving a balance of $1,990, for which the plaintiff sues.' The city in its answer alleges that it was entitled to deduct from the amount earned under the contract $1,840, being liquidated damages for 184 days’ overtime, at $10 a day. It will be seen from these figures that the plaintiff in any event is entitled to $150, which was the amount retained over and above the amount which the city insists it had the right to deduct, so that for that amount the plaintiff is in any event entitled to recover. The learned trial judge at the close of the case directed a verdict in favor of the plaintiff for the full amount, and the question presented for our consideration upon this appeal is whether that direction was right as to the $1,840 which was deducted by the city for overtime.

In directing, a verdict for the plaintiff the learned trial judge stated that the certificate of the borough president wa,s erroneous in principle and that it was “wrong, untrue, and made under a misconstruction of the terms of the contract;” and he stated that he gave much weight to the fact that there was an omission in the certificate with reference to Sundays and holidays, and that upon the whole case the plaintiff was. entitled to recover the amount claimed.

It will be noticed, therefore, that the controversy upon the trial turned upon the question as to whether the certificate Of the borough president, upon whom was imposed the duty of certifying as to the time expended in doing the work, was erroneous 'hnd the result of a misconstruction of the provisions of the contract. In order to determine whether the conclusion reached at the Trial Tern'i was right, it is necessary that we should refer .to some of" the provisions of the contract.

It was therein agreed by the plaintiff that he should finish -the work within 250 working days-after notice given to commence the . work, and that in the computation of said days “ the time * * * during which the work required by this contract has been delayed in consequence of the condition of the weather,.or by any act or ■ omission on the part of the parties- of the first part (all of which will be determined by the said Commissioner, who will certify to the same in writing), and also Sundays and holidays on which no work is done, and days on-which the prosecution of the whole work is suspended by order of the.said Commissioner will be excluded.” It was also provided that “mason work -of all kinds * * * including laying of vitrified stoneware and all work in setting curbstones and laying flagging and bridge stones shall cease from.the 1st of December to thé 1st of April in each year,” Also “ any in cum-' brances or obstructions which may be upon the line of the work when it is begun or -may thereafter be placed there shall, if directed by-the engineer, be removed by the contractor at his own. expense.”

With respect to the latter, namely, the' obstructions which the contractor was obliged to remove at his own expense, it was made to appear tliat there was a building standing on the line of - the proposed improvement and that there were "also certain telegraph poles-in-use, and that plaintiff was delayed by the New York, New Haven and-Hartford Railroad Company, and-also by the laying of water, pipes by another contractor and by certain curb stakes placed on the line of the railroad. With respect to all of these except the curb stakes we think the contention of the plaintiff was right — that they were not within the character of obstructions which he was required to remove, because he had no control over them and had no legal right to remove them, and, therefore, it was the duty of the city to see to it that they were not causes of delay in the work; consequently for such delays, the contractor was entitled to credit.

So too,- the time from the first of December to the first of April in each year, except during such days as the plaintiff was directed to work by the engineer, and whether or not during the prosecution of the work he was so directed is a question which is not satisfactorily answered, either by the testimony of the contractor or the city’s engineers, as well as Sundays and holidays, by the express terms of the contract should be deducted. Conceding, however, all of these to the contractor, we fail to find upon the evidence adduced that the contractor was entitled to a direction of a verdict in his favor as matter of law, the most favorable view being that there was a question of fact which should have been submitted to the jury. The examination which has brought us to this conclusion, without going extensively into the figures, may be briefly summarized.

From the certificate of the borough president, given as required by the contract, it appears that there were :

But the actual number of calendar days taken for the completion according to the respondent was 1,717 days. He claims that there should be deducted for Sundays and holidays and the winter months 678 days, which number deducted from 1,717 leaves 1,039 days. This result approximates sufficiently close to the whole number of days charged in the certificate under “ inspector’s time ” as 1,083^ to make it evident that Sundays, holidays and winter months were, deducted, the discrepancy being explainable either upon fhe gro,uncj of error or upon the ground that there was certain work done dnr ing the winter months, to the contrary of which the plaintiff was not able to testify.

The delays occasioned by fault of the city were estimated by the engineers, and the time account by that estimate and report stood as follows:

Notwithstanding this estimate the city concluded that as damage only to the extent of what had been paid an inspector during this time at the rate of $3:50 per day could be deducted, viz., $1,844.50, that the contractor should be charged only with that amount and, therefore, the overtime -was reduced to 184 days and to reach a balance the allowance for “unavoidable delays” was raised to 447-| days. The figures are slightly changed in the final certificate, due no doubt to some minor error in computation. This was a construction of the contract most -favorable to the contractor, being an allowance of 343 days in excess of the chief engineer’s estimate.

. The contract moreover provided that: “ To prevent all disputes and litigation it is further agreed by and between the parties to this contract that the Chief Engineer of Construction shall in all cases determine the amount or the quantity of the several kinds of work which are'to be.paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof, and he shall in all cases decide every question which may arise relative to ■the execution of this contract on the part of the said contractor.”

But assuming without deciding that the certificate being shown to be so indefinite and uncertain that it could be disregarded, and looking behind it, we think there was' a: question as to the amount of overtime for which the contractor should be charged. Taking the view most-favorable to the respondent of time elapsed and credits for delays, the time sheet would be:

It will thus be seen upon this record that there was presented a disputed question of fact as to the overtime, which should have been submitted to the jury, and for the error, therefore, in directing a verdict the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

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