
    Bernard Brady, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 26, 1892.)
    
    1. Municipal corporations—Contract.
    Plaintiff’s assignor in 1883 contracted with defendant to excavate and grade Ninety fifth street. In 1885, having completed his work, he rendered an itemized statement showing a balance of $31,000, and it was certified to be correct by the chief engineer, superintendent of streets and ■commissioner of public works, and defendant entered into and has «since had possession of the street. Four years afterwards he brousht this action to recover the amount due on the contract, which defendant refuses to pay on the ground of a failure of performance, in that he had not ■excavated the rock to two feet below grade as required. The contract required the entire work to be completed " to the satisfaction of the commissioner of public works and in substantial accordance with the specifications here annexed and the plan therein referred to.” No fraud was charged. Held, that the contractor was entitled to recover the sum certified, with interest.
    3. Same—Wrong grade given by surveyor.
    _ Where the grades were given by the surveyor or his assistant; examination made after the excavation was completed and before filling in was done; the filling subsequently made to grade, and the work accepted, if . the grade was mistakenly given to the contractor by the surveyor and the work done in conformity therewith and certificates of completion after wards given, the defendant cannot thereafter refuse to pay because as the result of a misdirection by its officers the specifications had not been literally complied with.
    Appeal from a judgment of the general' term of the superior-court of the city of New York, affirming a judgment of the trial term of that court, entered on the direction of a verdict.
    
      David J. Dean, for app’lt; L. Laflin KeUogg, for resp’t
    
      
       Affirming 32 St. Rep., 99.
    
   Parker, J.

The judgment under review awards to the plaintiff, as assignee of one John Brady, the sum of $42,792.35, adjudged to be due under a contract between John Brady and the defendant, by which it'was provided that Brady should regulate and grade Ninety-fifth street, from Tenth avenue to Riverside drive, for which he was to receive eight dollars per cubic yard for excavating earth, one-fourth of a cent per cubic yard for excavating rock, and one-fourth of a cent per lineal foot for furnishing and setting curb-stones, and for furnishing and laying flagging per square foot, one-fourth of a cent

This will be recognized as what is known as an unbalanced bid, but its legality is not sought to be questioned here, and if it were it would not be open for consideration, in view of the discussion of the question as presented by the contract now before us by Ruger, Ch. J., in 115 N. Y., 599; 26 St. Rep., 340.

Prior to the commencement of this action the officials authorized by the contract to represent and act for the city in all matters relating to the performance of the work stipulated for by it, made the following certificates:

“ Surveyor’s Certificate.
' “ I hereby certify that the following, amount of work has been ’ done in the matter of regulating and grading Ninety-fifth street, from the west curb of Tenth avenue to the east line of Riverside.Drive, and setting curb-stones and flagging sidewalks therein.
“John Brady,
“Contractor since the commencement of the work.
“ 14,667 cubic yards of earth excavated (fourteen thousand six hundred and sixty-seven).
“ 10,831 cubic yards of rock excavated (ten thousand eight, hundred and thirty-one).
“-- cubic yards of filling.
“ 2,591 2f-12ths linear feet of curb set (twenty-five hundred! and ninety-one and two three-fourths twelfths).
“ 10,452 7-12 square feet flagging laid (ten thousand four hundred and fifty-eight and seven-twelfths).
- “-linear feet of dry stone box culverts.
“-linear feet of picket fence.
“Herman K. Yiele, Surveyor.
“Date May 27, 1885.
“George A. Jeremiah,
“Superintendent of Street Improvements.”
Final Payment.
“The City of New York,
■“ To John Brady, Contractor, Dr.:
“For work done in the matter of regulating and grading Ninety-fifth street from the west curb of Tenth avenue to the east line of Riverside Drive, and setting curb-stones and flagging .sidewalks therein.
“ Certificate of acceptance of the work by the commissioner of public works, dated September 21, 1885, chapter 397, Laws 1852 ; •chapter 580, Laws of 1872, § 4.
“ Street improvement fund, authorized or contracted for after ■June 9, 1880.
“ Ordinance approved March 20, 1883 (Sec. 139, N. Y. Consolidation act of 1882). Estimated cost, $15,676.28.
“ Date, 1885, Sept. 30.
“ I certify that I have duly examined the above account and compared it with the contract and the surveyor’s certificate, and that it is correct, and the amount justly due.
“ George W. Birdsall,
Chief Engineer Croton Aqueduct.
“ George A. Jeremiah,
Superintendent of Street Improvements.
“ I hereby certify that I have examined the above account and believe it to be correct; that the prices charged are in accordance-with the terms of the contract for regulating and grading Ninety-fifth street, dated July 31, 1883 ; and such services as are herein, specified have been properly performed, according to the certificate of the officers of this department duly appointed to supervise-the same.
“ Eollin M. Squire,
Commissioner af Public Works.
“ I certify that the work mentioned in the contract herein specified has been completed according to the terms of said contract,, and is satisfactory.
“ Eollim M. Squire,
Commissioner of Public Works.

The judgment recovered is for the sum thus certified to be due with interest added.

It is not asserted by the answer that the contract was fraudulently procured, or that it was for any reason invalid. On the contrary, the defendant relies on it and asserts that the plaintiff cannot recover because of a failure of performance on the part of his assignor. In order that it shall clearly appear in what respect-it is claimed the contractor has failed to perform in such substantial respect as to prevent a recovery in any sum whatever, it is-desirable in this connection to call attention to the situation of the-contract and the parties to it at the time o£ the trial.

Nearly four years before that time the officers named by the-defendant in its contract made the certificates which by its terms were to determine the final completion of the contract and the-right of the contractor to receive the compensation within thirty days thereafter ; the commissioner -of public works specially certified that the contract had been completed according to its terms,, and was satisfactory.

About that time the defendant entered into and has since continued in possession of the street. It should be further observed that the defendant does not claim that the certificate made by the engineer, surveyor and superintendent of street improvements-over states the quantity,of materials of any kind therein certified; nor is it claimed that this plaintiff has recovered judgment for excavations made, or work of any kind done which was not in, fact performed. In other words it is not disputed that plaintiffs assignor actually removed all the material and did all the work for which he has recovered judgment; nor is it asserted that the work was not performed as directed by the officers having charge of the execution of the contract for the defendant.

But it is contended that the contractor did not excavate the rock to two feet below the grade. The contract provides that “ the street is to be regulated two feet below the grade where there is rock, in sections of not less than 100 feet in length for the full width of the street at a time, and is to be examined by the surveyor before placing any filling therein, after which earth filling is to be filled to grade. * .* * Any portion of the street not thus regulated and properly examined will not be received as finished.”

It is not disputed but the earth was removed from the street; rock excavated; examination made by the surveyor; the earth brought back and filled up to the grade required by him; or" that the work was not declared to be properly done, and received as finished after it was done; neither is it claimed that the officers of the defendant have at any time suggested to the contractor or his .assignee that there was some mistake or oversight at the time of the making of the certificates to the effect that the contract had been completed, at the same timé insisting that notwithstanding their execution and delivery to him, further work should be done.

So appellant’s contention amounts to this, that notwithstanding the defendant made a contract by which it agreed to pay for the doing of certain work, if done in substantial compliance with the terms of the contract, and to the satisfaction of the commissioner of public works, upon a certificate by him to that effect together with certificates by the surveyor and superintendent of streets; and notwithstanding the making of such certificates and the taking of possession by the defendant, of the completed work, that it may put in issue the contractor’s assertion of performance, by 'Calling a witness to testify that he has made an examination and found rock nearer to the established grade than two feet in a number of places, the quantity on the entire work being estimated by him at 650 yards. That upon such evidence it may wholly ■defeat a recovery.

At the threshold of its contention the defendant is confronted with the difficulty that its pleading does not present the issue on which its reliance is sought to be placed.

The answer admits the making of the contract; the making and delivery of the certificates by the four officers named in the •contract; payment thereon by the city.

It further admits “ that the said work has been accepted by the commissioner of public works, acting on behalf of the defendant, and that more than thirty days have expired since such acceptance ; but it alleges on information and belief that such acceptance was on or about the 7th day of May, 1885, instead of the date named in the first paragraph of the complaint,” and it further alleges among other things that all of the earth and rock -excavation in the complaint in this action, and in the said contract referred to, was completed before the 6th day .of February, 1885, and the whole of the rock excavation provided for by said contract and'described in the complaint herein was completed on or before the 7th day of May, 1885.

It cannot avail the defendant on this review that, notwithstanding the admission of the answer, which, with the evidence given,, fully supports the determination of the court in directing a verdict in favor of the plaintiff, the testimony was received on which it founds its claim of right to go to the jury. For such testimony was seasonably and properly objected to by the plaintiff on the ground that it was not admissible under the pleadings. Its reception was error and the plaintiff having duly excepted to the-rulings, this court is precluded from considering it for the purpose of a reversal.

If it be assumed that the pleadings permitted the introduction of evidence presented by the defendant we should still reach the-conclusion that it was not error for the trial court to direct a verdict.

The appellant’s position assumes that a literal compliance with the specifications forming a part of the contract was essential incomplete 'performance under the contract. We do not so read it,, and shall briefly call attention to some of its provisions which we deem controlling in that direction. In the first place the proposal intended to inform bidders not only of the character, but the general amount of work to be performed; time of performance and other essential features of the contract to be subsequently entered into; states that “ bidders will be required to complete the-entire work to the satisfaction of the commissioner of public-works and in substantial accordance with the specifications here-annexed and the plan herein referred to.”

Immediately following the stipulation in the contract on the part of the contractor, that he admits and agrees that the work to-be done as stated in the proposals is approximated only, and that-he will not assert any misunderstanding in regard to the depth of excavations or nature of materials, it is declared “ and he covenants and agrees that he will complete the entire work to the satisfaction of the commissioner of public works, and in substantial, accordance with said specifications and the plan therein mentioned.”

The first clause in the specifications reads : “ The street for its; whole width is to be regulated and graded where required in accordance with the plans and profile of the said street.” By its-terms the commissioner of public works was empowered to designate the time when the work should commence; was given power to suspend the work; to order it commenced again ; to. declare it abandoned; to consent to its being sub-let, or assigned by the contractor; and invested with the right to declare the same null and to re-advertise and re-award it. While it is agreed that the-commissioner shall have, among other powers, those already enumerated, the contractor further directly agrees to do work not, described in the specifications if required to do so by the commissioner of public works.

One of the subdivisions of the contract having in contemplation, the possible desirability of doing other work than provided for in* the contract, provides that other persons may be employed to do such work, and the contractor “ will suspend such part of the work herein specified, or will carry on the same in such a manner as may be ordered by the said commissioner.”

It is also agreed that if within six months after the acceptance ■of the work, if, in the opinion of the commissioner, repairs are required and notice to make them given, the contractor “ will immediately commence and complete the same to the satisfaction of said commissioner.”

It was covenanted that the city should retain the sum of twenty-five cents per linear foot of the work to be done as security for repairs, and that it might be expended “ in the manner hereinafter provided for in making such repairs to the work done under this agreement as the said commissioner of public works may deem necegsary.”

tinder the heading, “ work and material must agree with specifications,” is the following: Party of the second part “agrees that the work shall be performed in the best manner, and the stone, sand and other material of which the work is composed shall be of the best kind, and that a sufficient number of persons -shall be at all times employed to execute the work with due dispatch, the whole to be done to the satisfaction of the commissioner of public works; and any materials furnished or work done not satisfactory to the commissioner of public works shall be removed and satisfactorily replaced by the said party of the second part.”

These provisions are not in conflict with other portions of the contract, but, on the contrary, are supported by and consistent with them, and establish that the specifications were not necessarily to be exactly, but substantially, performed, in accordance with the specifications and to the satisfaction of the commissioner -of public works.

Thus it was stipulated not only that the work should be done to the satisfaction of one of defendant’s officers, but that as the representative of the defendant and acting for it, he should determine whether the contract was substantially complied with.

How;, the uncontradicted evidence is that the surveyor, or his •assistant, gave to the contractor the grades to which the excavations were conformed. The defendant distinctly provided in its ■contract that its surveyor should be one of the officers to represent its interests in the execution of the contract, and that his certificate that the work had been completed should be essential to ■the right of the contractor to demand compensation for his work. Hot only does it appear that the grades were furnished by the surveyor, or his assistant, but it also appears that he subsequently certified to the completion of the work as provided by the contract. That the contractor was at liberty to follow the directions •of the officers whom the defendant had stipulated to represent it and speak for it in the execution of the contract is manifest not -only from the provisions of the contract already referred to, but also from two others to which allusion may be briefly-made.

Tinder the heading “ change of grade ” it is conditioned that “ the said party of the second part hereby further agrees that in ease the grade of the street shall be changed during the progress, of the work he will conform to the altered grade at the prices-specified herein as far as they are applicable. ”

Under the heading “ excavating ” it is said: “ The street is to-be regulated two feet below the grade, where there is rock, * * * and is to be examined by the surveyor before placing any filling-thereon, after which earth filling is to be filled to. gradé. Any portion of the street not thus regulated and properly examined will not be received as finished.”

It may be observed that the -undisputed evidence is that the? grades were given by the surveyor, or his assistant; examination made after the excavation was completed and before any filling-was done; the filling subsequently made to grade, and the work accepted.

It is quite clear that it was the intention of .the. parties under this contract that the contractor should in its execution be-governed by the direction of such of defendant’s officers as it declared in the contract should represent it. So if the grade should be mistakenly given to the contractor by the surveyor and the-work should be done in conformity therewith, and certificates of completion afterwards given, the defendant could not thereafter object that the plaintiff should not be compensated because as the-result of a misdirection by its officers the specifications had not been literally complied with.

A similar contract was considered-by this court in Mulholland v. The Mayor, 113 N. Y., 631; 22 St. Rep., 347.

The engineer made a mistake in furnishing the contractor with the grade, with the result that after the work had been done, the-city’s officer's having in the meantime discovered the error, the contractor was required to excavate deeper and as it appears at greater expense to him than would have been incurred had the' true grade been given in the first instance. It was held that he was entitled to recover the value and the amount of the extra labor and increased expense. Necessarily the foundation of that decision rests on the proposition that under the contract the contractor is authorized to follow the directions of the officers named in its contract tó represent it. Otherwise the court must have-held that defendant could not recover for extra work because the? depth of the excavation was specified in the agreement and therefore could have been followed. Such a construction of the contract seems to be required by its terms and is just to both parties.

Again the city not only provided for a substantial perforarance: in accordance with the specifications; stipulated that the commissioner of public works should determine what should constitute a performance; provided for daily inspection; for right to-change the grade; for an examination by a surveyor after excavation, and prior to placing the filling thereon; but also for a certificate by three of its officers, or employees, to wit: the surveyor,, inspector and superintendent of street improvements in charge of the work, and commissioner of public works, that the work had been completed.

The city required the contractor to agree, and he did, that after completing the work he should not demand or receive payment, until such completion “ be duly certified by the surveyor, inspector and superintendent of street improvements in charge of the' work, and until each of the other stipulations hereinbefore mentioned are complied with and the work completed to the satisfaction of the commissioner of public works, and accepted by him.”

After the making of such certificates and the acceptance of the work by the commissioner of public works, the defendant agreed to pay on or before ■ the expiration of thirty days from the time of the completion of the work. The certificates thus provided for have been made. The commissioner of public works has accepted the work. That such certificates were made in good faith is not questioned, nor is it claimed that there was any mistake of fact therein. The defendant, therefore, cannot now challenge the decision of those whom it contracted should determine the question of performance or non-performance, and upon whose determination it promised to make payment.

The provision of the contract upon which defendant largely-founded its argument in support of a reversal, if requiring the construction contended for, might present an interesting question, because such provision would then be brought in conflict with other-portions of the contract.

It is claimed that it operates to so relieve the city from the-effect of its stipulation touching the question of performance, as to permit it to challenge the allegation that the work has been-completed notwithstanding the making of the certificate and the acceptance of the work by the commissioner of public works. But it does not require and should not receive the construction asked for. It provides that the defendant, nor any of its officers-nor departments, shall “be precluded or estopped by any returner certificate made or given by any engineer, surveyor, inspector, or other officer, agent or appointee of said department of public-works, or said parties of the first part, under or in pursuance of anything in this agreement contained, from at any time showing the true and correct amount.and character of the work which shall have been done and materials which shall have been furnished by the said party of the second part, or any other person or persons under this agreement.”

If it had been intended to provide that the city’s agreement to-be bound by the certificates of its officers and acceptance by the-commissioner of public works should be nullified by the subsequent objection of any officer or department, it could and doubtless would have been plainly and tersely expressed. So that the contractor should understand that while the contract prevented him from demanding compensation until after the city’s officers should make certain certificates, the city’s agreement was only to pay within thirty days after making of the certificates in case the defendant or some department or officer of the city should not object, in which event some tribunal not provided for in the contract should be called on to determine whether there had been performance; to decide whether the work had been done to the satisfaction of the commissioner of public works. That in such case the premise in the contract that the commissioner should himself decide whether he was in fact satisfied should go for naught and some one else should decide it for him.

But these suggestions need not be extended. The clause which we have quoted is entirely separated from the concluding portion of the contract which undertakes to provide how performance shall be ascertained and bindingly declared, and was not intended to trespass on its provisions.

It does not provide that such certificates shall not estop the defendant from showing failure of performance, but it shall not estop it from showing the true and correct amount and character of the work done and materials furnished. Not that the city can prevent a contractor from receiving what has been earned under a contract when the certificates shall have been given, but that it may prevent a recovery for a greater amount than the work was worth

Therefore it reserved the right to challenge, 1. The amount of the work ; this would include the dumber of yards of earth and rock, and number of feet of curbing, etc. 2. The character of the work; this would enable the defendant to show in a proper case that rock had been estimated as earth, or vice versa. By this provision therefore it is left open to the defendant to call upon the court to so correct the certificates as to quantities and kinds of materials as to prevent a recovery for any greater sum under the contract than was therein stipulated for.

But that feature of the contract is of no importance here for, .as we have said in another portion of the opinion, it is not disputed but the work for which plaintiff claimed to recover was of the character and amount claimed.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur; Landon, J., in result  