
    James Brady, Resp’t, v. The Mayor, etc., of the City of New York, App'lts.
    
      (New York Superior Court, General Term,
    
    
      Filed June 24, 1887.)
    
    1. New York (city of)-consolidation act-Laws 1888, chat. 410, § 64— Contract tor work, etc., on public buildings.
    The Department of public Parks had awarded to the plaintiff as the lowest bidder, under Laws 1882, chapter 410, § 64, a contract for the construction and materials of a public building in a public park. By the contract, certain floors were to he of pine, and the plaintiff was to receive §29,740. Afterward the wood for said floors was changed to cherry, and it was agreed that plaintiff should have $975 more, which he estimated would be the difference in the price of these floors done with cherry over them when done with pine. Held, that the change involved an expenditure of more than $1,000, and the contract could only he awarded to the lowest bidder upon proposals made as provided in said section.
    2. Same—When work costs over $1,000.
    
      Held, that the price of the pine which plaintiff was released from furnishing, should be added to the §975, in determining whether the work involved the expenditure of more than §1,000.
    Appeal by defendants from judgment entered upon findings and conclusions made by a judge in a case tried by consent before him without a jury.
    
      John J. Townsend, Jr., for appTts; Theodore De Witt and George De Witt, for resp’t.
   Sedgwick, J.

This was an action upon a contract for damages, tried by consent without a jury.

The department of public parks had awarded to the plaintiff as the lowest bidder under section 64 of the consolidation act, chapter 410, Laws of 1882, a contract for the construction and materials of a public building in a public park. By the contract, the wood to be used in the first floor, was pine. The plaintiff was to receive for all the work and materials $29,740. Before the wood for the first floor was furnished or any work done upon it in the building, the department, or the officers composing it, considered that cherry wood was in use and appearance a better material than pine, and procured an estimate from the plaintiff of how much more than the $29,740 the city would have to pay him if he furnished and set in cherry, in the stead of the pine. He, in his calculations, fixed upon an amount he would charge for a job of that kind, done with cherry, and also fixed upon the amount he considered he would receive under the contract for the pine and the work upon it, if he should proceed to complete the contract according to the specifications, and offered to furnish the cherry and put it in for the difference between these two-amounts, that is, for $975.

Section 64 commands that when any work is necessary to be done to complete or perfect a particular job, and the several parts of the work shall involve the expenditure of more than $1,000, the same shall be by contract, which shall be awarded to the lowest bidder upon proposals to be made as provided in the section.

An important question in this case is, did the furnishing and putting in this cherry wood involve an expenditure of more than $1,000 for it ? It is certain that it involved an expenditure of more than $975; because a part of the consideration to the plaintiff was that he was to receive the whole amount fixed by the contract as if he furnished pine and the work upon it, and yet he was released from the obligation of furnishing pine. The - city was to pay the value of the pine in addition to the estimate of $975. There was no finding as to the value of the pine material, but as there was a finding that the value of furnishing pine and work upon it, as required by the contract was about $325, it sufficiently appears in the case that the pine material was worth more than twenty-five dollars. As in my judgment the work in question involved an expenditure of more than $1,000, the contract for it was in violation of the statute, as it was not made with the lowest bidder, after the publication of proposals, as required by the statute.

There are other serious questions in the case, but what has been already said, requires the reversal of the judgment.

Judgment reversed, and a new trial ordered, with costs to abide the event.

Freedman and Teuax, JJ., concur.  