
    Joseph Gallo, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Contract — determinable on ten days’ notice— waiver of the notice by an instrument not under seal—conditional delivery of such instrument—deslmction of the locus in quo by fire.
    
    A contract, pursuant to which the plaintiff was to have the privilege of assorting the refuse dumped from the carts of the street cleaning department of the city of New York, provided that if at any time the commissioner of street cleaning should deem it for the best interest of the city to terminate the contract, for any other cause than the failure of the plaintiff to comply with its terms, he might do so upon giving ten days’ notice to the plaintiff.
    After the plaintiff had entered upon the performance of his contract, the assorting of refuse was, with his acquiescence, suspended in compliance with the requirements of the health department of the city, and thereafter the plaintiff executed three instruments, one of which stated that the contract was thereby canceled and revoked by mutual consent, and the others that the contract might be terminated forthwith without service of the notice specified in the contract, and without any further notice being given to the plaintiff ; subsequently the commissioner of street cleaning served a notice on the plaintiff stating that his services would not be required after that date.
    In an action brought to recover damages for a breach of the contract it was
    
      Held, that, while the instruments executed by the plaintiff after the suspension of the assorting, not being under seal, could not be effectual as a release without proof of a consideration to support them, they constituted prima facie a waiver of the notice provided for by the contract;
    That it was competent to show, however, that such instruments were delivered conditionally, and that the condition upon which they were to become operative had not arisen, as the effect of such evidence would not be to contradict their terms nor their legal effect;
    That even if the instruments in question did not operate as a waiver of the notice provided for by the contract, the plaintiff’s recovery was, by reason of the provision in the contract authorizing the commissioner to terminate it, upon ten days’ notice, limited to the damages for that period;
    
      That there being no provision in the contract for the reconstruction or repair of a dumping board, which, by reason of a Are, was not in condition for use when the contract was made, the plaintiff was not entitled to any allowance, because the dumping board was not fitted up and put into use.
    Appeal by the plaintiff, Joseph Gallo, from so much of a judgment of the Supreme Court, entered in the office of the cleric of the county of New York on the 7th day of May, 1896, upon the verdict of a jury rendered by direction of the court, as dismisses his complaint as to the first and third alleged causes of action.
    This appeal was transferred from the first' department to the second department.
    
      Arthur H. Masten and Henry M. Ward, for the appellant.
    
      William L. Turner, for the respondent.
   Bradley, J.:

The first cause of action set forth in the complaint is founded upon an alleged breach by the defendant of a contract between the parties, whereby it was agreed that the plaintiff should have the privilege of assorting the refuse dumped from the carts of the street cleaning department at the dumping boards of the city, for the period of one year from June 12, 1892, for which the plaintiff undertook to furnish all the laborers necessary to trim the scows and boats of that department, and pay to the city $1,786 weekly in advance. The plaintiff entered upon the performance of the contract. The alleged breach is that, on or about the 1st day of November, 1892, the defendant refused to allow the plaintiff to proceed further in its performance. The contract contained a provision to the effect that if at any time before the expiration of the contract period the commissioner of street cleaning should deem it for the interest of the city so to do for any other reason than the failure of the plaintiff to comply with the terms of the agreement, he should have the power to terminate it upon giving at least ten days’ notice in writing to him of such intention, and that on the date and time specified in the notice the plaintiff would discontinue the work and the agreement absolutely terminate.

In September, 1892, the health department, in apprehension of cholera, as a precautionary measure required that assorting the refuse should be, and it was, suspended. In this the plaintiff acquiesced, and pursuant to an agreement with the defendant he, by laborers furnished by him, did the work of trimming the scows at the dumping boards, without any assorting, at a stipulated price for the service, until about the first day of November, when he received from the commissioner of street cleaning a notice in writing that the contract for trimming scows had been awarded to a person named, and that the services of the plaintiff’s men in such work would not be required after that date. This notice was not in the form of that contemplated by the terms of the contract, as it did not specify a day at least ten days subsequent to the time of service, for the termination of the contract. But, in view of the fact that it was within the power of the commissioner to put an end to the contract on ten days’ notice, it would seem that such must be deemed to have been the consequence of this notice if at that time the ten days’ notice provided for in the contract was necessary to terminate it. The view of the commissioner evidently was that no such notice was then required for the purpose by reason of three certain instruments in writing of date October 3,1892, executed and delivered by the plaintiff, in one of which it was stated that the contract was thereby canceled and revoked by mutual consent without prejudice to either party as against the other; in another of them it is stated that the contract may be canceled, and absolutely terminated forthwith, by the commissioner without the service of any such notice as that specified in the contract, for its termination, and by the terms of the other the plaintiff consented and agreed that the contract might be terminated forthwith and become absolutely void from and after that date without the service of further notice on him. Those instruments not being under seal could not be effectual as a release without proof of a consideration to support them as such. (Crawford v. Millspaugh, 13 Johns. 87.) But they might constitute a waiver of the notice provided for by the contract, for its termination. (Buel v. Trustees of Lockport, 3 N. Y. 197; Phyfe v. Eimer, 45 id. 102.) And without something appearing to the contrary they would have been of such effect, and as a consequence the first alleged cause of action would have no support in the evidence. Such was the situation when the parties treated the evidence as closed. But afterwards, on the application of the plaintiff’s counsel, the court opened the case for further evidence relating to those three instruments, and limited the inquiry to the question whether they were obtained from the plaintiff by fraud. If there had been an adherence to such restriction it would he difficult to see in the proof offered any support for that charge, but the plaintiff did offer to introduce evidence tending to prove that those instruments were delivered conditionally to be used only in a certain event and for a certain specified purpose, and that such event or occasion had not arisen. The evidence was excluded, not because offered too late, hut on the ground that it would present no question for the jury. The view taken of the record is such that when this evidence was offered, the condition upon which permission was at first given to the plaintiff to add further evidence was relinquished by the court. The evidence that the delivery of the instruments was conditional would be no contradiction of their terms or of the legal effect which their terms import, but that, because the event upon which they were to become operative had not occurred, they did not become effectual as a waiver of the notice mentioned in the contract. (Reynolds v. Robinson, 110 N. Y. 654; Blewitt v. Boorum, 142 id. 357.) These views lead to the conclusion that the exception to the exclusion of such evidence was well taken. But if the conditional delivery and the want of any operation or effect of those instruments be made to appear, the breach of the contract on the part of the defendant can embrace within its legal consequences damages for the period of ten days only, for the reason before suggested.

The plaintiff obtained by the judgment all the relief he sought by the second cause of action alleged in the complaint. There was no support in the evidence for any recovery upon the third cause of action, and as to that the complaint was properly dismissed. The dumping board at the foot of Forty-sixth street, East river, was in no condition for use when the contract was made. It is said that it had been destroyed by fire. There was no provision in the contract for its reconstruction or repair. Ror was there any ambiguity in the terms of the contract, or anything which required evidence to explain, or to complete or perfect any of its provisions.

The import of the contract was that the plaintiff should have the privilege of assorting all the refuse which was dumped from the carts of the defendant, and as it was so dumped. It is not seen that any collateral promise made by the commissioner of street cleaning, to have that dumping board repaired for use, could give any support to the plaintiff’s claim to a rebate, because it was not fitted up and put into use. He had the full benefit of his contract while engaged in its performance.

In the view taken of the case there was no error in any ruling at the trial, other than in the exclusion of evidence relating to the first cause of action alleged in the complaint, and for that the judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment appealed from reversed and new trial granted, costs to abide the event.  