
    John S. Giles, Plaintiff, v. William B. Crosby et al., Defendants.
    1. Where a bond is given by several persons, by the terms of which they obligate themselves to pay a sum therein named, “ on the completion of the opening of Canal street and the widening of Walker street, according to the plan now in the hands of Commissioners,” &c., and the plan is subsequently, without the consent of the obligors, so changed that a gore of land at the part of Canal street, bounded by Centre, Walker and Baxter streets, instead of being taken and converted into a park, as the original plan contemplated, is not taken, but is left to be built upon, and Canal street is extended an additional distance, and the work is completed according to the modified plan, such obligors are not liable upon said bond.
    2. The question of their liability on such bond is not affected by the fact that the change of plan made the improvement less expensive than it would have been if completed according to the plan referred to in the bond.
    (Before Hoeeman, Pierrepont and Moncrief, J. J.)
    Heard, October 26;
    decided, November 26, 1859.
    This action is brought by John S. Giles, as plaintiff, against Wm. B. Crosby, John C. Beekman, Henry R. Remsen, William Remsen and Frederick Schuchardt, as defendants. It was tried before Chief Justice Bosworth and a jury, on the 9th of March, 1859.
    It is brought by the plaintiff against the defendants to recover the sum of $10,000, with interest from March 24th, 1854, and is founded on a bond executed by the defendants to the plaintiff, dated November 8th, 1851, conditioned for the payment by the defendants of $10,000, on the completion of the opening of Canal street and widening of Walker street, according to the plan then (£. e., November 8th, 1851,) in the hands of Commissioners, for the opening of Canal street into Walker street, and the widening of Walker street. The condition of the bond declared that “ these presents are given under the express condition that before the said obligors, or either of them, or either of their heirs, executors or administrators, shall be called upon or bound to pay the above mentioned sum, satisfactory evidence shall be given to them that the said sum of ten thousand dollars was necessarily paid or incurred in order to carry out said plan ; the manner of its expenditure or distribution shall also be exhibited and shown to them.”
    The complaint states that the said opening of Canal street and widening of Walker street was completed according to the said bond and the condition thereof, about September 11, 1854, and that satisfactory evidence was furnished of the actual and proper ■expenditure of the sum of $10,000.
    ' The answers of all the defendants, except that of William Remsen, deny these allegations.
    The complaint also contained a statement of a second cause of action for alleged work and labor and money paid and expended for the use of the defendants, but no evidence was offered in relation to any subject but the bond and the liability of the defendants thereon.
    The answer of the defendant, William Remsen, alleges that the improvement mentioned in the condition of said bond was never carried out, according to the plan therein referred to; but that, after the date of said bond, the plan was materially altered, and without his consent; and that he is absolved from all obligation under said bond, and denies that any evidence was furnished to him of the expenditure of any part of the $10,000.
    On the trial, it appeared that the plan in the hands of the Commissioners at the date of the execution of the bond, was as described in a resolution of the Common Council of New York, passed 1848.
    It also appeared that after the execution and delivery of the bond, the plan was, during the year 1852, altered.
    That the difference between the original plan and the one subsequently carried out, was:
    That the gore of land shown on the map, at the part of Canal street bounded by Centre, Walker and Baxter streets, which was, by the original plan, to be thrown into the street, was not taken and made a park by the subsequent plan ; and that Canal street was continued beyond Rutgers street to East Broadway. The width of the street, which was to be seventy-five feet, and its course were not otherwise altered. The changes were, leaving the gore to be built upon, and the continuing of Canal street beyond Rutgers street, a distance of part of a block, to East Broadway.
    
      It was also proved that the plaintiff received notice from the defendants of this change of plan, before the confirmation of the report of the Commissioners, and that they would not assent to it, and considered themselves absolved from all liability by reason of the change; that the plaintiff in reply insisted that they were not discharged from liability.
    The plaintiff offered to prove “ that by not taking the gore, the cost of the improvement was lessened to the amount of one hundred thousand dollars, and the improvement not injuriously affected thereby.” The evidence was excluded, and the plaintiff excepted to the decision.
    The defendants, at the trial, moved for a dismissal of the com- • plaint, on the ground that the condition of the bond was not fulfilled, because the plan in the hands of the Commissioners at the date of said bond was not carried out, the gore not being taken in, and Canal street being continued to East Broadway.
    The Judge granted the motion, and the plaintiff excepted. The Judge then ordered that the questions of law arising at the trial be first heard at General Term, and that the, entry of judgment in the meantime be suspended.
    The plaintiff now moves for a new trial on the exceptions, and the defendants for judgment absolute.
    
      William Curtis Noyes and John B. Scoles, for plaintiff.
    " I. The condition of the bond was fulfilled. What the defendants contracted for was a street seventy-five feet in width, from Centre street to Rutgers street. This they got. That by a subsequent resolution of the corporation of the city of New York, this street was extended half a block further to East Broadway, does not alter it. There was no change of plan in the widening of Walker street, or the extension of Canal street to Rutgers street. It was not an addition to the original plan, but an independent measure, by which the street was carried half a block further, although embraced in the same enterprise about which the plaintiff contracted.
    II. The gore of land to be made into a park was no part of the street, nor of opening a street. It was something contemplated to be added to the street. Not taking the gore therefore did not change the plan of the street, or abridge or in any way affect or diminish its value as a street. All that the defendant contracted for was a street seventy-five feet wide, according to the plan then in the hands of the Commissioners of Estimate and Assessments, and this they obtained. In truth the non-taking of the gore was an advantage to the defendants, as it lessened the expense.
    III. The exclusion of the gore of land, and the extension from Eutgers street to East Broadway, were, by resolutions of the mayor, aldermen and commonalty of the city of New York, over which the plaintiff had no control, and were matters entirely disconnected with the opening of the street contracted for. As they were no part of the opening, and not connected with plaintiff’s contract, they cannot prejudice it.
    IV. The Judge erred in excluding evidence, that by not taking the gore the expense of the extension and widening was diminished, without injuriously affecting the improvement. Admitting, for the sake of argument, that this was a variance from the original plan, the question is, whether the condition of the bond was not substantially complied with. An immaterial change in the plan, not affecting the value of the improvement, but essentially benefiting the parties who were to pay for it, cannot legally absolve these defendants from the payment of the money seemed by the bond. Suppose there had been a change of a few inches in some part of the street proposed to be widened, would that vitiate the bond ? It was a question for the jury, whether the defendants had received in substance what they contracted for. The evidence offered by the plaintiff went to show that they had. It was for the defendants to rebut it, and show, if they could, that the alleged change of plan was a material alteration, and injuriously affected the improvement. Covenants are to be construed according to their spirit and intent, and it is sufficient if they are performed according to their spirit and intent, although not according to the letter. (Marvin v. Stone, 2 Cow., 781, 786, and cases there cited by Talcot, arguendo; Com. Dig., title “Covenant” E.)
    V. The bond constituted an agreement between the plaintiff and the defendants for work and labor, in procuring the street to be opened; and the clause in the condition of the bond, that the sum agreed upon was to be paid “on the completion of the opening of Canal street and widening of Walker street, according to the plan now in the hands of the Commissioners for the opening of Canal street in to Walker street, and the widening of Walker street,” did not create a condition within the common law rule upon that subject.
    1. Such a condition is inapplicable to a contract for work and labor, operating to do injustice, and as a penalty. Penalties under contracts between parties are created only by clear and express words, never by implication.
    2. To make it operate as a strict condition, is to make it operate unequally, as well as harshly; for though the defendants have all the street they contracted for, and the consequent benefit stipulated to be given to them, yet the plaintiff is to obtain no compensation, though he has performed all the services his contract called for. (Campbell v. Jones, 6 T. R., 570; Hall v. Cazenove, 4 East., 477; Constable v. Cloberlie, Palmer’s R., 397; McAuley v. Billenger, 20 Johns., 89; Ritchie v. Atkinson, 10 East, 295; Kemble v. Wallis, 10 Wend., 374.)
    3. To construe it as a covenant for work and labor, demanding only a substantial compliance by the performance of the services contemplated, is to carry into effect the intention of the parties, and to do justice to the plaintiff, while no injustice is done to the defendants, as they have received all the advantages to their property they contemplated.
    
      John Van Burén, for defendants,
    Insisted, that inasmuch as it was proved that material changes of the plan were made after the bond was given, without the consent of the defendants, the condition of the bond was never fulfilled, upon which alone the defendants chose to become liable on the bond.
    That the testimony offered, as to the effect of the change of the plan upon the expense of the improvement, was properly rejected. That the defendants were the sole and exclusive judges of what plan would benefit them, and for the completion of which they, would pay.
    That judgment should be ordered for the defendants, according to the decision at the trial.
   By the Court—Hoffman, J.

The plaintiff offered no evidence under the second cause of action stated in his complaint, and it may be dismissed from our consideration.

One express condition of the bond was, that before the obligors should be called upon to pay, satisfactory evidence should be given to them, that the sum of $10,000 was necessarily paid or incurred in order to carry out the plan; the manner of its expenditure or distribution shall also be exhibited to them.

The complaint alleges that this satisfactory evidence was furnished, and this exhibition made before the commencement of the action. The answer of all the defendants except William Eemsen, by not denying, may be taken to admit this. Eemsen puts it in issue. No evidence touching the matter was given on the trial. It would seem to be entirely fatal to the plaintiff’s case as against Eemsen, that no such proof was given. It is very clear that this was a condition precedent to a recovery, and should have been proved as well as averred.

The answer given to this objection was, that the point does not arise, and cannot be considered here, because the learned •Judge had dismissed the complaint on one particular ground, a ground different from that in question.

The course on the dismissal of the complaint is thus stated: “ The counsel moved for a dismissal of the complaint on the ground that the condition of the bond was not fulfilled, because the plan in the hands of the Commissioners at the date of the bond was not carried out; the gore not-being taken in and Canal street being continued to East Broadway.”

“ His Honor the Judge granted the motion on the ground that the gore was not taken in, and Canal street was continued to East Broadway, which was not according to the plan of the Commissioners at the date of the bond.”

Assuming for the present case, that the Court may not enter upon any other ground which would have justified a dismissal, upon a bill of exceptions, but must limit its view to the question of error or no error in the precise point, we proceed to examine that point.

It seems to us clear that the alteration in the plan, particularly by the omission to take the gore, one side of which was on Centre street, was a material alteration. It was a deviation from the plan originally resolved "upon, and on the execution of which the defendants were to be bound for a sum of no slight character. No one could pretend to say, that it was so indifferent and unimportant as that the conclusion would be irresistible, that the defendants, had it been so proposed originally, would have entered into the same contract. This appears to me to be the true question to be solved.

If a jury had given a verdict for the plaintiff upon the question being left to them, whether the change was material in view of the condition of the bond, it would have been set aside. The case of Pullman v. Corning, (5 Seld., 93,) and the cases there cited contain the principle governing the present. A partial fulfillment of a contract, a deviation from a contract has been held in some leading cases to preclude a recovery where, undeniably, much injustice was done by the strict enforcement of the rule. We are left to conjecture as to the positive loss or injury sustained in the present case.

That the plaintiff neither procured the alteration nor could have prevented it is no reply to the objections against his recovery. His undertaking implied the power to accomplish the work in the mode prescribed, or made payment to depend upon the success of his efforts. It would have been different had the defendants been accessory to the change.

The judgment must be ordered for the defendants, with costs.

Judgrpent for the defendants,  