
    United States Wood Preserving Company, Respondent, v. The City of New York, Appellant.
    (No. 1.)
    First Department,
    June 8, 1910.
    Contract—street paving—New York city — evasion of provision in regard to extra work.
    . Where a street paving contract provided that' no claim for extra work or materials should be allowed unless the borough president authorized such work in writing before performance, the Contractor cannot recover for extra work done by direction of the city engineer pursuant to his promise to obtain the written order. ,
    Nor can such provision be evaded by procuring a written order from the borough president after the completion of the entire contract and one day before final payment was made and a general release given.
    Appeal by the defendant, The City of New York, from a. judgment of the Supreme Court in faVor of the plaintiff, éntered in the office of the clerk of the county of New York on the 26th day of June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1909, denying the defendant’s motion for a new trial made upon the mintites.
    
      Terence Farley, for the appellant.
    
      John J, Ounneen, for the respondent.
   Miller, J. :

On the 23d of June, 1905, the plaintiff entered into a contract with the defendant for repaving Broadway in the borough of Queens with wood block pavement, and on the 27tli of June, 1905, entered into a similar contract for repaving Second avenue. The contracts . contained the following provision :

“ Extra Work Limited.

“Ho claim for extra work or materials shall be made by or allowed to the Contractor, unless before the performance of such extra work the President shall have first authorized the same in writing, and the price or prices to be paid therefor shall first have been agreed upon in writing between the President and the Contractor, and the same shall have been done or furnished under a written order from the President, given' before the performance of such extra work or the furnishing of such extra materials. The aggregate price to be paid for extra work or materials so authorized or ordered shall not exceed five per cent (5%) of the contract price or total cost of the work and materials.”

.The plaintiff’s general manager testified that at about the time of starting the work on the two contracts he had a conversation with the defendant’s engineer in which it was determined that it would be a good thing to put in pitch expansion joints and that the engineer directed him to do that and promised to send him. an order for them. The contracts did not provide for expansion joints. Without any further agreement and without the written authority of the borough president, the plaintiff proceeded to put in the expansion joints as the work progressed. The final certificate on the Second avenue contract was given by the engineer on the 6th day of October, 1905, and on the 28th day of Hovember, 1905, the final payment was made and a general release given, by the plaintiff to the defendant. The final certificate on the Broadway contract was made on the 20th day of October, 1905, and the final payment was made and a general release given on December 1,1905.. On the 30th of Hovember, 1905, the borough president gave to the plaintiff four separate orders for expansion joints for pavements on Second avenue, Broadway, Jamaica avenue and Sanford avenue, the aggregate cost of which was more than $1,000. Probably the four orders were given ■separately to avoid complying with section 419 of the charter (Laws of 1901, chap. 466), and to make it appear that the work called for by them was independent of the contracts for repaving. It is unnecessary, however, to determine whether said section 419 applies, for it is plain that the putting in of the expansion joints was extra work within the meaning of the contract, and could only be recovered for in case, before performance, the borough president had authorized it in writing, and had agreed in writing with the contractor Upon the prices to be paid. That provision of the contract could not be evaded after the contract had been completed, final payments made and releases given, by written orders which were probably désigned to evade a provision of the charter as well.

The judgment and order should be reversed and the complaint dismissed, with costs. . < '

Ing-eai-iam, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment and order reversed and complaint dismissed, with costs to appellant.  