
    Thomas Dwyer, Appellant, v. The Board of Education of the City of New York, Respondent.
    
      Action by a contractor against a city board of education for extra work — effect of a release and a stipulation as to the manner in which the claim should be determined.
    
    A contract with' a city hoard of education provided that any dispute as to the •construction of the plans or drawings and specifications for a school-building should be decided by the superintendent of such buildings, whose. decision should he final, and that any other dispute might he arbitrated. A claim for extra work, having been submitted to, and rejected by, the Superintendent, the' board of education agreed to examine it upon the claimant’s releasing all other claims in consideration of a present payment, and also stipulating that the particular claim should thereafter be determined, subject to the approval of the board of education and that of the city board of estimate and apportionment. After the board of education had allowed the claim at a small per cent of its face the board of estimate and apportionment returned it with a request for further information, and before the board of education had taken any further action in the matter the claimant sued the latter board for the whole claim. Held, that the action could not be maintained;
    That the claimant’s release and stipulation precluded his recovery.
    Appeal by the plaintiff, Thomas Dwyer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of 'the clerk of the county of New York on the 16th day of February, 1897, upon the verdict of a jury rendered'by direction of the court.
    
      Charles J. Hardy, for the appellant.
    
      Chase Mellen, for the respondent.
   O’Brien, J.:

The action was brought to recover $3,006.25, alleged to be due for increased cost of performing a contract for the erection of a school building at the' corner of One Hundred and Sixty-seventh street and Courtlandt avenue. The plaintiff had a contract for the building of the schoolhouse, under the terms of which he was to furnish, for the sum of $199,700, all the material and work, whether mentioned in the specifications or not, and .usual to -complete the building, in accordance with the.plans and to the satisfaction of the superintendent of school buildings. The contract also.contained a provision that, should any dispute arise as to the construction of the plans or drawings and specifications, it was to be decided by the superintendent of school buildings, and his decision should be final, and that with respect to any other difference between the parties, the same might be submitted to arbitration. During the construction the inspectors required certain work to be done, and a dispute arose as to whether such was within the terms of the contract, or was extra .work. .The matter having been referred to the superintendent of" school buildings, he decided against the plaintiff and in favor of the'' inspectors; The plaintiff requested the defendant to ■ examine his claim after the -superintendent had decided against him, and the latter agreed to do so, provided the plaintiff would sign a stipulation, which he did. The adjustment under the stipulation was referred to a sub-committee, which reported adversely to the plaintiff on all claims except as to $379.50, which it allowed. This report was adopted by the hoard of education and forwarded to the board of estimate and apportionment for allowance. The stipulation was as follows: “ The sum of twenty thousand nine hundred and forty-six dollars and thirty-four cents, $20,946.34 (the last payment), will he in full of every claim and demand whatever in the premises, except the amount of my claim for extra work to be hereafter ■adjusted and determined, subject to the approval of the board of education and of . the board of estimate and apportionment, and to ■an appropriation to be duly made therefor.” This stipulation is ■dated June 6, 1892, and before the board of education acted thereunder the plaintiff applied for and on July 28, 1892, received the final payment, at which time he executed a general release except as to a claim of $165, retained for surveyors’ fees which were subsequently paid him. The bill for extra work was presented to the board of education some time after November 5, 1892, .and was considered during 1894. The result was the making of the award to the plaintiff, as already stated, at $379.50 ; and thereafter the board •of education forwarded the same for approval to the board of estimate and apportionment, but by the latter it was returned. That this was done to obtain additional information appears from the ■extract from the minutes of the board of estimate and apportionment, which contains a letter directed to the comptroller from an engineer, who had undoubtedly been instructed to investigate, in which the engineer states that he could “ obtain no information •about the matter,” and that the allowance appears to me to be a •compromise of a doubtful account.” The next step was the commencement of this action by the plaintiff.

It will be seen that the conditions precedent upon which to base the plaintiff’s claim are wanting. Whether we view it upon the theory that it is for extra work, or damages for delay in completion, it was a subject of dispute which, in the first instance, was resolved against the plaintiff by the superintendent of buildings under, the stipulation in the contract, and subsequently-was arbitrated by the sub-committee on buildings of the board of education, which latter recognized the claim only to the extent of $379.50; and this, as shown by the stipulation into which the plaintiff entered, was to be paid only upon condition that the approval of the board of estimate and apportionment to the payment could be obtained. That the defendant acted in good faith in its- endeavor to secure such approval appears; and that it was unsuccessful likewise appears.

It is true there was no express disapproval, the claim being returned evidently for further information. On ascertaining this, if the plaintiff had requested the board of education to forward the information and that board had declined, another question would be present. Instead, however, of waiting for the board pf education to act, this suit was brought, not for the amount of the award, but for the total claim for extra work. The plaintiff’s release and stipulation stood in the way of such recovery. To obtain the award, the action, we think, was premature. The burden of showing his right to the payment of the amount awarded was upon the plaintiff; and having failed to sustain it, he was properly nonsuited.

The judgment should, therefore, be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Judgment affirmed, with costs.  