
    The Mayor, etc., of New York, Resp’ts, v. Patrick Reilly, et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    1. Municipal corporations—Contract—Delay in performance.
    In a contract made with the defendant Reilly by the city of New York through the commissioner of public works it was provided that Reilly was to begin work at a time designated by the commissioner and finish in twenty-three days. No time was designated, but Reilly proceeded of his own accord. The contract provided that-the commissioner might terminate it for “ unneccessary delay.” Held, that as no time had ever been designated to commence, the contractor was not in default.
    
      2. Same.
    It also provided that mason work was to cease on December 1 unless the commissioner otherwise directed by written notice. A part of the work was mason work and no work was done before December 1. Held, that as no time to commence was designated and no notice permitting mason work after December 1 was ever given, the commissioner had no power to abrogate the contract.
    3. Same.
    The agreement also provided that if the contract was taken away from the contractor for delay and relet and an extra expense was thereby caused the contractor must pay, on notice from the commissioner, the excess so-due. Held, in an action against the contractor and his sureties, that failure to give notice of the excess to be paid was a defense.
    The court at circuit directed a verdict in favor of the plaintiffs, and ordered the exceptions to be heard in the first instance at general term. This is a hearing upon such exceptions.
    
      John J. Townsend, and the corporation counsel, W. FL. Clark, for resp’ts; L. Lafiin Kellogg, for app’lt Kelly; Arthur E. Smith, for app’lt Reilly; Joseph Fettretch, for app’lt Williams.
   Barrett, J.

This action is upon a bond to the plaintiffs, given by all the defendants, to secure the faithful performance by Reilly of a sewer contract, awarded to him by the commissioner of public works and executed contemporaneously with such bond. It will not be necessary to consider all the exceptions, as there are one or two which we think fatal to a recovery. It was provided in the contract that Reilly should commence-the specified work “ on such day and at such place or places as the said commissioner (of public works) may designate, and progress therewith so as to complete the same on or before the expiration of twenty-three days thereafter.” The commissioner never-made the designation authorized by this clause, but Reilly commenced work without it. This was all very well so long as matters proceeded satisfactorily, but when the commissioner became dissatisfied with Eeilly’s progress, and sought to abrogate the contract because of what he deemed “ unnecessary delay,” he was bound to set the twenty-three days running. He could not charge the contractor with unnecessary or any delay until he had at least fixed the time and place for the commencement of the work. That Eeilly voluntarily proceeded is immaterial. It was not the delay incident to voluntary action which was contemplated, but delay when there was an obligation to proceed. If, for instance, the time of commencing work had been specified in the contract, the contractor might have forestalled that time, but he would not have been bound to do so. Nor could he have been charged with neglect because he failed to utilize all the intervening time. His contract obligation to commence work at the specified date would govern, and he could not well be derelict until then.

The same principle applies where the time of commencing is to be fixed by a particular official. The duty to proceed arises only when the official has acted. Then, too, it must not be overlooked that the contract is highly penal and confers almost arbitrary power upon the commissioner. It provides that “ if at any time the said commissioner shall be of opinion and shall so certify in writing that the said work or any part thereof is unnecessarily delayed * * * he shall have the power to notify the aforesaid contractor to discontinue all work or any part thereof under the contract. Hpon this notice being given, the contractor “shall discontinue said work,” and the commissioner is then authorized to complete it, by contract or otherwise, and in case the expense shall exceed the sum which would have been payable under the contract to charge the excess to the contractor, who agrees to pay it “ on notice from the said commissioner of the excess due.”

It is but reasonable that before the commissioner acts under these extreme provisions, the strict letter of the contract with regard to the time of commencing the work should be observed. The contractor’s rights cannot be taken away by the mere opinion of the commissioner until there is at least a precise legal basis for its exercise. There is another consideration which strengthens this construction. The contract provides that “mason work of all kinds shall cease on the first of December in each year unless the commissioner of public works shall otherwise direct by written notice, and then shall be continued only for such time as may be designated in such notice, and no work shall be resumed before the time appointed by said commissioner.” How can any contractor whose contract calls for mason work be charged with delay occurring after the first of December, so long as he has received no such written direction to proceed? A designation under the contract of the time to commence work (involving mason work), given after the first of December, might possibly be treated as equivalent to a written direction to proceed with all the ivork called for by the contract, although, where there is other than mason work to be done, that is extremely doubtful.

Without such a designation, however, there can surely be no question of unnecessary delay, after the 1st of December, with regard to mason work called for by the contract, but not specially directed in writing to be done. Here the contractor neither received notice to commence work at a particular time nor a notice authorizing the mason work. Assuming, then, that the commissioner substantially complied with the statute requiring his certificate of unnecessary delay, we think he was not authorized to abrogate the contract in the manner he did, under the then existing circumstances.

The failure of the commissioner to give Reilly notice of the sum which he was required to pay was also ground for a nonsuit. The agreement was to pay “ on notice from the commissioner of the excess so due.” Notice from some one else was not the condition. It must be remembered that this was not an ordinary promise to pay money acknowledged to be due, but, in substance, damages for the breach of a contract, such damages to be liquidated in a particular way. One claiming a sum thus brought about should be held to strict compliance with every prerequisite to payment, especially in an action against sureties.

The exceptions should, therefore, be sustained and a new trial ordered, with costs to abide the event.

Yah Bruht, P. J., and Bartlett, J., concur.  