
    Borough Construction Company, Respondent, v. The City of New York, Appellant.
    Second Department,
    March 12, 1909
    Municipal contract — breach by the requirement of work not specified — pleading — service of claim on city—frivolous denial.
    A municipal contractor who under protest has been compelled to do work outside of the contract by a wrongful insistence that the work was within the agreement, may base an action on a breach of contract.
    
      Where the plaintiff alleges that the claim set out in the complaint was duly presented to the comptroller who failed to allow or pay the same, an allegation by the defendant denying any knowledge or information sufficient to form a belief as to the plaintiff’s allegation is frivolous and insufficient to raise an objection that the plaintiff has recovered on a claim different from that filed.
    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 Kings on the 27th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    The action is for damages for breach of a contract of the plaintiff with the defendant to build a sewer, by which the plaintiff was compelled to do work and furnish material not covered or required by the contract.
    
      Theodore Connoly[Terence Farley, Francis Martin and Francis K. Pendleton with him on the brief], for the appellant.
    
      Edward M. Grout[James F. McKinney and Paul Grout with him on the brief], for the respondent.
   Gaynor, J.:

The ground of defendant’s liability alleged in the complaint and stated in the charge is not that the plaintiff performed extra work, i, e., work outside of the contract, at the request of the engineer in charge for the defendant under the terms of the contract, and thereby made with him a new contract therefor, which he had no power to make for the defendant, "but that the engineer violated the contract by compelling the plaintiff to do such work against its objection and continued protest, on the wrongful insistence by him that it belonged under the contract, and that its non-performance would be a breach thereof; and. for that a recovery may be had (Gearty v. Mayor, etc., of N. Y., 171 N. Y. 61).

The point is raised by the defendant that the claim alleged in the complaint and on which the plaintiff was allowed to recover was a different one to that filed with the city comptroller pursuant to section 261 of the city charter. It suffices that there was no such issue in the case. The complaint alleged that the claim alleged in the complaint was' presented to the comptroller on August 9th, 1905, and that he failed to allow or pay the same,, and the answer only denies any knowledge or information of this allegation sufficient to form a belief thereof. ■ This did not suffice for a denial^ i. .e., it was a frivolous denial, for. the claim as presented in writing was on file in the comptroller’s office, and therefore the defendant in presumption of law had full knowledge of it and of its contents, and was not permitted to resort to the lenient form of denial which it used (Rochkind v. Perlman, 123 App. Div. 808; Purdy v. City of New York, 126 id. 320; Bogart v. City of New York, 128 id. 139). The opinion in the recent decision in the Purdy case by the Court of Appeals (193 N. Y. 521) presents no embarrassment in réspect of this rule of pleading. The order of this court reversing the judgment of dismissal cf the complaint on the ground of the insufficiency of such notice was reversed, although it was pointed out here by an opinion that there was no such issue in the case, because of a denial in the answer the same as the one in the present case. But the ground for reversal stated in the opinion of the learned Judge who wrote in the Court of Appeals is solely the insufficiency of the notice, only this being said to cover the point that the pleadings presented no such issue, viz.: “ None of the other questions presented need to be discussed ”. But as the Court of Appeals has-itself fully established the said rule of pleading in City of New York v. Matthews (180 N. Y. 41) it cannot be presumed that it meant to upset it in the Purdy case. It would be more reasonable to infer that counsel for the plaintiff omitted to stand on the point in the Court of Appeals; or else that the court considered the point as not raised on the trial.

The judgment should be affirmed.

Woodward., Jenks, Rich and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  